Twenty-Third Street Baptist Church v. Cornwell — 56 N.Y. Super. Ct. 260

Majority

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THE TWENTY-THIRD STREET BAPTIST CHURCH, Appellant v. JACOB B. CORNWELL et al., as Executors, &c., Respondents.ts.

Headnote

Subscription, payable on a contingency, prerequisites to a recovery on— Unincorporated church associations, validity of subscriptions by—Payment of invalid subscription after prescribed period for subscription, effect of—Motion for new trial on minutes on dismissal of complaint, improper.

Subscriptions payable on the contingency of a specific amount subscribed within a certain period are not recoverable unless valid and binding subscriptions to the specified amount are made within the time.

Unincorporated bodies formed for the purpose of prosecuting the work of a church in different channels (which did not comprise the subscription and collection of subscriptions for the building of a church) cannot make valid subscriptions to a fund for building a church edifice, this although they purport to have a president, or treasurer, and the subscription is made in the name of the societies by their presidents or treasurers.

The payment by such societies of the amounts of their subscription after the period within which subscriptions were to be made, will not, their subscriptions being essential to make up the required amount, render the other subscribers legally liable for their subscription.

When on a trial before a judge and jury the complaint is dismissed, a motion for a new trial on the judge’s minutes is improper.

Before Freedman and Truax, JJ.

Decided October 25, 1888.

Appeal from a judgment dismissing the complaint upon the merits with costs, and also from an order

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denying a motion for a new trial upon the judge’s minutes.

The action was tried before the court and jury.

The Stanton Street Baptist Church desiring to move its location, sold its property in Stanton street, and with the proceeds of the sale purchased some lots in Twenty-third street. For the purpose of erecting a church edifice on the Twenty-third street lots a subscription was started. The subscription paper was as follows :

“ We, the undersigned, hereby agree to pay on May 1, 1882, or sooner, at our option the sums severally set to our names towards a church edifice fund of fifty thousand dollars ($50,000) now being raised by the Stanton Street Baptist Church of New York city, on condition that the aggregate of subscriptions herein found shall not be less than the said amount of fifty thousand dollars ($50,000).

“Moneys received will be paid into the New York Life Insurance and Trust Company.

“Location of the new building to be Twenty-third street, corner of Lexington avenue.”

On April 30, 1882, there was subscribed to this paper $50,145. Among these subscriptions however were one of “ Ladies Aid Society, Mrs. H. O. Hiscox, President, $5,000.” “ One of Young Men’s Mission Society, Harry Angelí, President, $5,000.” “ One of Youths’ Mission Society, E. D. Garnsey, President, $25.” And that of Catherine Weeks (the defendant’s testatrix), $5,000.

This action was brought to recover the $5,000 subscribed by Catherine Weeks.

It appeared in the evidence that the Ladies Aid Society, the Young Men’s Mission Society and the Youths’ Mission Society were unincorporated, and were formed for the purpose of prosecuting the work of the church in different channels; that the Ladies Aid Society was an old society having a special line of missionary work under its charge; that the Young Men’s

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Mission Society was an old organization for benevolent purposes; it also appeared that the subscriptions of these societies had been paid but not until after May 1, 1882; it also appeared that none of these societies were formed for the purpose of subscribing or soliciting subscriptions for the building of a church edifice.

At the conclusion of the testimony on behalf of the plaintiff the court dismissed the complaint. The plaintiff then moved' for a new trial on the minutes which was denied.

Edward 8. Clinch, attorney and of counsel for appellant, on the points decided, argued :—

The Ladies- Aid Society, the Young Men’s Mission Society and the Youths’ Mission Society were unincorporated bodies formed for the purpose of prosecuting the work of the church in different channels. The Ladies Aid Society has been in existence since prior to 1864, and had a special line of missionary work under its charge. During that time it had collected money for other purposes than for the church building and the amount collected rose largely into the thousands. It was shown that they overpaid their subscription by more than $1,000. The Young Men’s Mission Society had been connected with the church for thirty-five or forty years, had collected large sums of money during those years, and at its twenty-fifth anniversary had collected over $30,000. There is no evidence to show the constituency of the Youths’ Mission Society, but the subscription was made by E. D. Garnsey, Treasurer.

It seems to have been claimed below that bona fide subscriptions could not be made by an. unincorporated body, and upon that ground the motion to dismiss the complaint was made. In other words, that persons cannot associate themselves in unincorporated bodies and create obligations • binding upon them. The plaintiff insists that, prima facie at least, every member of these unincorporated bodies who were subscribers became

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personally liable for the amount of the.subscription, and that this liability could have been enforced by the plaintiff had the subscriptions not been paid.

The Code of Civil Procedure provides for actions by and against such unincorporated associations (§§ 1919-1924). It provides that an action or special proceeding may be maintained against the president or treasurer of an unincorporated association upon any cause of action for or upon which the plaintiff may maintain such an action .against all the associates by reason of their liability therefor, either jointly or severally, and that any company of persons which has a president or treasurer is deemed an association within the meaning of section 1919. Section 1921 provides that a judgment against the association shall not authorize an execution against the property of the officer against whom it is brought, while section 1922 provides for the commencement of an action against the members of the association, on the return wholly or partly unsatisfied and unexecuted of an execution issued thereupon; and section 1924 provides, that section 1913, which provides for the misnomer or death or non-liability of any person who may be joined as a defendant in such an action, shall be applicable to an action brought as prescribed by section 1922. These provisions of the Code are based upon the laws of 1849, chapter 258, but are more comprehensive than that chapter and more amply protect the rights of creditors against such associations. In the face of these provisions and conditions, it cannot be successfully maintained that these societies and their members could not have been held liable for the amount of their subscriptions had they not been paid. Ebbinghousen v. Worth Club, 4 Abb. N. C. 300 and note. Black v. Spaulding, 10 Han, 128. Certainly, prima facie that the subscriptions made by these societies were bona fide was established upon the trial of this action.

The defendants will probably cite in support of their contention the case of the Presbyterian Church of

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Albany v. Cooper, 45 Hun, 453 . In that case it appears that an attempt was made to raise a fund of $45,000, upon a subscription paper, which provided that the subscriptions were made “ upon the express condition and not otherwise, that the sum of $45,000 in the aggregate, shall be subscribed or paid in.” It appeared by the subscription paper that “ The Ladies Association of the First Presbyterian Church” had subscribed $5,000. The “ Ladies Association ” was an unincorporated body, and it does not appear when it was formed. At a meeting of the ladies, one of their number presiding, a resolution was adopted pledging themselves to raise $5,000, the payment to be according to the terms of the subscription paper. By its opinion, the general term seems to have been led to its conclusion by this fact, for it says: “The subscription of $5,000, by the ‘ Ladies Association ’ clearly was not legally binding upon the twenty-five or thirty ladies who assembled and passed a resolution to raise the money, but did not pass it to make the subscription......The entire transaction was simply a testimonial of their good will or of their willingness to try to raise the sum named.”

The “ Ladies Aid Society ” connected with the plaintiff church had been in existence about twenty years and had] collected many thousand dollars, and was a recognized agent of the church in the special lines of work which were committed to it and as such society it made a subscription and not a mere agreement to raise money, so that the case at bar is clearly distinguished from the case of the Presbyterian Church v. Cooper. In that case, it also appeared that a subscription was made in the name of the “ young men of the church,” who, at a meeting, passed a resolution pledging themselves to raise “ by entertainment or otherwise $1,500 towards the paying of the $45,000 mortgage upon the church, and that the chairman be requested to sign and forward the resolution to the treasurer of the board of trustees; ” and that this was, done, but the subscription paper was

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not signed, so that, in respect to this amount, there was no valid subscription. The resolution passed by the “ young men of the church ” differs essentially from the subscription made by the “ Young Men’s Mission Society,” which has been connected with the plaintiff for thirty-five or forty years, and was also a recognized agent of the church for the collection of moneys.

Van Winkle, Candler and Jay, attorneys, and Flamen B. Candler of counsel, for respondents, on the points decided, argued:—

I. Where a subscription is made upon condition that-a certain sum shall be subscribed within a specified time, all the subscribers must be equally liable in order to make legally binding any of the subscriptions. And the condition is not fulfilled unless the subsequent subscriptions are legally binding and made by solvent and responsible persons upon no other conditions than those limiting the liability of the first subscriber. Stewart v. Trustees of Hamilton College, 2 Den. 403 ; Westminster College v. Gamble, 42 Mo. 411 ; N. Y. Exch. Co. v. DeWolfe, 31 N. Y. 273 ; Chesebrough v. Wright, 51 N. Y. 662 .

II. Subscriptions to a church edifice fund on a subscription paper similar to the one in this action, made by unincorporated bodies or associations such as the “Ladies Association” and the like, are not binding in law; and when it is necessary to include the amount of such invalid subscriptions in order to make up the amount required, as the condition precedent to the subscribers’ liability, none of the subscribers to the paper are' bound. Presbyterian Ch. v. Cooper, 45 Hun, 453 , 456. Even though the “Ladies’ Association” above referred to or any similar association which had been duly incorporated were by its president or other officer to sign a subscription paper in the corporate name, the act would not be binding upon the corporation as a corporate act. Peoples’ Bank v. St. Anthony’s Roman

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Catholic Church, 39 Hun, 498 , The subscriptions appearing on the subscription paper in the following form : “ Ladies’ Aid Society, Mrs. H. O. Hiscox, President, $5,000; ” “ Young Men’s Mission Society, Harry Angelí, President, $5.000; ” “ Youths’ Mission Society, E. D. Garnsey, Treasurer, $25,” and. “ Mrs. McDonald and class, $500,” were all, and each of them invalid, because none of those associations had any' corporate existence, and no one was bound by the action of its officers in signing the subscription paper, and none of such subscriptions are of the kind contemplated by the law. Peoples’ Bank v. Church, supra; Church v. Cooper, supra.

III. These subscriptions above quoted were invalid at the time they were made. This invalidity could only be cured by the payment of the money under them before May 1, 1882. Any payment subsequent to that date would be ineffectual, and it appears by the evidence that all payments upon every one of them were made subsequently to May 1,1882. Stewart v. Trustees of Hamilton College, 2 Den. 403 ; 1 N. Y. 581 .

IY. The motion for a new trial made at the Trial Term was improper, no verdict having been rendered. Van Doren v. Horton, 19 Hun, 7 ; Hill v. Hotchkin, 23 Hun, 414 ; Seely v. N. Y. C. R. R., 25 Hun, 280 ; Healy v. 23d St. R. R., 11 Daly, 281 ; Dusenbury v. Dusenbury, 1 Civ. Pro. 292.

The principal question in this case, the one arising on the appeal from the judgment, has been passed upon by the general term of the Supreme Court, Third Department, in the First Presbyterian Church &c. v. Cooper, 45 Hun, 453 .

On the authority of that case we hold that the subscriptions of the Ladies’ Aid Society, Young Men’s Mission Society and of the Youths’ Mission Society were invalid, and that the aggregate of subscriptions was less than fifty thousand dollars.

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The motion for a new trial on the judge’s minutes was improperly made. Section 999 of the Code of Civil Procedure authorizes the judge presiding at a trial by a jury to entertain a motion for a new trial made upon his minutes, only in a case where there has been a verdict. Dusenbury v. Dusenbury, 1 Civ. Pro. Pep. 292 and cases there cited.

The judgment and order are affirmed with costs.

Cases cited

New York Exchange Co. v. De Wolf 31 N. Y. 273 N.Y. p. 265
Chesbrough v. Wright 51 N. Y. 662 N.Y. Comm'n App. p. 265
Trustees of Hamilton College v. Stewart 1 N. Y. 581 N.Y. p. 266