Tee wa aa hte Oa AES Fotacae o whet ed Matte elie deans Io eaten ale ate wn Sete Ae eter oon SPO a ve MEE Sacra es - 7 5%. [ : b ‘ - . - @ _ ao w Ss ‘ - = — = y : ; r - i» io = - - 1 “ oa => . a = bd 2 - 3 J Pins j =e . — - 2 A a an a ai ; — x > 4 - -——~ s: ~ - » od cat F “ + x a Ae ¢ 7 - 7 ¢ eve = a Digitized by the Internet Archive In 2022 with funding from Princeton Theological Seminary Library https://archive.org/details/supremecourtcoun0Ounse rae. , wally) ha Ra mee | wr 4 4 oe hie mn) ‘ i Oy n a7 i] tL iw i ; ; ‘4 Pe j i ‘ ' a : ¥) \ | i ‘ ‘ ; With eee alia Pt ery Se _) ¢otgeeioaaemaniaas ’ » . wr AV ¢ te (e 7 5 a RSAC 0 NI! ok Cor aan é pe peae apa’ as clays a Toe ay ee wae ak tual } . ‘ ; ‘ ; 4 | 5 ‘ ~ 4 ‘ . pis va, 8 wt ieee i i ; ee : na Aid if Uh . AY a +‘ « a a pte Sip * APR 141908 My “ye, Lox ceinn gEM SUPREME COURT, COUNTY OF NEW YORK. WALTER FINDLAY, J. T. MONELL, Mrs. G. H. CLAYTON, MARGARET A. CAMPBELL, MARY SCOTT, Mrs. I. GARDINER, RACHAEL BROWN, ANNIE F. STANBURY, ANN WILSON, HANNAH HIGBIE, ROBERT F. McKEE and JAMES McKENZIE, Jr., suing on behalf of themselves and all other members of Wes apes gi ee Church of West Twenty-Third Street, ole Ct ) Plaintiffs, against JOHN LLOYD LEE, JOHN H. DE LAMATER, JOHN D. CLUSS, BRADFORD L. GILBERT, JOHN E. HEARTT, JAMES B. LINDSAY, CARSON G. ARCHIBALD, JAMES C. GULICK, HOMER LEE and EDWARD H..SLOCUM and THE WESTMINSTER PRESBYTERIAN CHURCH OF WEST TWENTY-THIRD STREET, Defendants. Summons, Complaint, Notice of Motion for Injunction and Affidavits. RUSH TAGGART, ste Attorney for Plaintiffs, be Cae : 195 BROADWAY, ma | : New York City. NEW YORK: Cc. G. 3 cxieoubrlasl ee WALKER AND CENTRE STS. 1906. y-third Street, x2 Plaintiffs, AGAINST ee Tae E. Heart, B. Lrypsay, Carson G. Lp, James C. Guitox, and Epwarp H. ake re ee UTA TT A Siaeon oo D the 26th aes of March, 1906, thereto sisnt qulprarited and the affidavit of F.E. se 2 5 attached, the undersigned will move this Court, at a Spe- cial Term thereof, to be held at Chambers, Part I., in the County Court House, in the City of New York, on the 5th day of April, 1906, at 10.80 in the forenoon, or as soon thereafter as counsel can be heard, for an order enjoining the defendants, John Lloyd Lee, John H. De Lamater, John D. Cluss, Bradford L. Gilbert, John E. Heartt, James B. Lindsay, Carson G. Archi- bald, James C. Gulick, Homer Lee, and Edward H. Slocum, defendants, from using, occupying, or possess- 6 ing the property of the Westminster Presbyterian Church of West Twenty-third Street, or any of the income or revenues thereof, and from removing or dis- posing of the books, papers and documents constituting the records of said Church, and from interfering with the occupancy, use, possession, or control of the same - by the plaintiffs, and other members of said Westmin- ster Presbyterian Church of West Twenty-third Street, who may associate with the plaintiffs under the direc- tion, advice and control of the Presbytery of New York 7 pending the trial of this action; and for such other or further relief as may be just, with the costs of this motion. RusH TaGaart, Office and Post-Office Address, No. 195 Broadway, Borough of Manhattan, New York City. SUPREME COURT, Country oF New York. =a Water Finptay, J. T. MoneEL1, aa O. H. Crayton, MarGcarer al CAMPBELL, Mary Scott, Mrs. I. GARDNER, RacHEeL Brown, ANNIE F, Sranpury, ANN WILson, HANNAH Hiasizt, Roperr F. McKrr and JamMES McKenzir, JR, suing on behalf of themselves and all other members of Westminster Presby- terian Church of West ipa Third Street, : SS eee Plaintiffs, AGAINST { JoHN Luoyp Lrz, Jonn H. DsLa-| MATER, JOHN D. Criuss, BRADForD L. GILBERT, JoHN E. Hearrr, JAMES | B. Linpsay, Carson G. ARCHIBALD, | James C. Gutick, Homer Lee and | Epwarp H. Stocum, and THE WEsT- | MINSTER PRESBYTERIAN CHURCH OF West Twenry-THIrD STREET, Defendants. TO THE ABOVE-NAMED DEFENDANTS : You are hereby summoned to answer the complaint in this action and to serve a copy of your answer on the plaintiffs’ attorney within twenty days after the service of this summons, inclusive of the day of service ; 9 10 11 12 4 13 and in case of your failure to appear or answer, judg- ment will be taken against you by default for the relief demanded in the complaint. Dated, New York, March 26, 1906. Rusu TacGart, Plaintiffs’ Attorney, Office and Post-office Address, No. 195 Broadway, Borough of Manhattan, New York City. 14 15 16 Or SUPREME COURT, County or New York. Water Finpuay, J. T. MOowneLL, Mrs. G. H. Crayton, MarGcarer A. CAMPBELL, Mary Scort, Mrs. I. GarpNer, RAcHEL Brown, ANNIE F. Stanpury, ANN WiLson, HANNAH Hicpie, RKoserr F. McKrsg, and | JAMES McKenziz, Jr., suing on behalf of themselves and all other members of Westminster Presby- terian Church of West Twenty- third Street, Plaintiffs, AGAINST JoHN Lioyp Ler, Joun H. Des LAMATER, JOHN D. Ciuss, Brap- FoRD L. GILBERT, JOHN E. HeEartr, JAMES 3B. Linpsay, Carson G. ARCHIBALD, JAMES OC. GULICK, Homer Ler, Epwarp H. Stocvum, and WESTMINSTER PRESBYTERIAN CuurcH of West Twenty-third Street, Defendants. a aN The plaintiffs, by Rush Taggart, their attorney, complain of the defendants and say : 1. That they are informed and believe that the Westminster Presbyterian Church of West Twenty-third Street is a_ religious corporation of the State of New York, organized on or about the 19th day of April, 1889, under and 1s 19 20 21 22 24 6 in accordance with the provisions of Chapter 60 of the Revised Laws of the State of New York, 1813, entitled ‘an Act to provide for the incorporation of religious corporations,” acts amendatory of and sup- plementary thereto; that the said Westminster Presbyterian Church of West Twenty-third Street was formed by the Union of two pre-existing religious corporations, one known as the “ West- minster Presbyterian Church,” a corporation organized under the Act entitled, “ An Act for the incorporation of religious societies,’ passed April 5, 1813, and acts amendatory thereof and supplementary thereto ; and the other the ‘* West Twenty-third Street Presbyterian Church,’ a religious corporation duly incorporated under an act entitled “ An Act for the incorporation of religious societies ”, passed April 5, 1813, and acts amendatory thereof. Copies of the petitions of said churches respectively, of the agreement, proceedings relative to the said consolidation, and the order of the court confirming the same, in accordance with the pro- visions of said Religious Corporations Act, are hereto attached, made part hereof and marked “ Exhibit A”. 2. The plaintiffs allege that on and prior to the 31st day of January, 1906, and at all times sub- sequent thereto, they and each of them, were members of said Westminster Presbyterian Church of West Twenty-third Street in good standing; that the defendant, John Lloyd Lee, at said date and prior thereto was and had been pastor of the said church, and the defendants John H. DeLamater, John D. Cluss, Bradford L. Gilbert, John EK. Heartt, James B. Lindsay, Carson G. Archibald, James C. Gulick, Homer Lee, and Edward H. Slocum, were the elders constituting with the Pastor, if any, the session of said church, and under action taken in accordance with the provisions of Chapter 97 of the Laws of 1902 of the State of New York, entitled ‘‘ An Act to amend the religious corporation law relating to Pres- byterian Churches,” the said church had taken action on or about the 5th day of April, 1905, whereby the 7 members of the session of the said church became also er-officio the board of trustees thereof. 3. That said Westminster Presbyterian Church of | West Twenty-third Street, at all times subsequent to its formation in the year 1889, and the churches which were united to form the same as hereinbefore set forth, for many years prior to their consolidation, as aforesaid, had formed a constituent part of, and had been subor- dinate to and under the jurisdiction and control of the Presbytery of New York, and a constituent part of the Presbyterian Church in the United States of America; that the Form of Government of the said Presbyterian Church in the United States of America, provides among other things that every particular church “consists of a number of professing Christians, with their offspring, voluntarily associated together for divine worship and godly living, agreeably to the Holy Scriptures and submitting to a certain form of government ” that under the said form of government of the said church, each particular church is governed by a session composed of a pastor or pastors, and ruling elders. The ruling elders are chosen by the members of the church. Each church is a constituent part of and subordinate to and under the control of a presbytery, which consists of all the ministers, in number not less than five, and one ruling elder, from each congregation, within a cer- tain defined district. The Form of Government of said church defines the power of the Presbytery as follows : “The presbytery has power to receive and issue ap- peals, complaints and references from church sessions brought before them in an orderly manner; and in the trial of judicial cases, the presbytery shall have power to appoint and act by Judicial Commissions ; to examine and lecense candidates for the holy ministry ; to ordain, install, remove and judge minis- ters ; to examine and approve or censure the records of the church sessions ; to resolve questions of doc- trine or discipline seriously and reasonably proposed ; to condemn erroneous opinions which injure the purity 25 26 27 23 29 30 31 32 8 or peace of the Church; to visit particular churches, for the purpose of inquiring into their state, and re- dressing the evils that may have arisen in them; to unite or divide congregations, at the request of the people, or to form or receive new congregations, and in general to order whatever pertains to the spiritual welfare of the churches under their care.” that over said presbyteries in said church is the synod, composed of three or more presbyteries within its boundaries, and with representation determined from the ministers and elders of the congregations in said presbyteries upon a ratio determined by the synod itself, and its presbyteries. The power of the synod is defined in the Form of Government as follows : “The synod has power to receive and issue all appeals regularly brought up from the presbyteries, provided, that in the trial of judicial cases the synod shall have power to act by commission, in accordance with the provisions on the subject of judicial commissions in the Book of Discipline; to decide on all references made to them ; its decisions on appeals, complaints, and references, which do not affect the doctrine or con- stitution of the Church, being final ; to review the rec- ords of presbyteries, and approve or censure them ; to redress whatever has been done by the presbyteries contrary to order ; to take effectual care that presby- teries observe the constitution of the Church: to erect new presbyteries, and unite or divide those which were before erected ; generally to take such order with re- spect to the presbyteries, sessions, and people under their care, as may be in conformity with the Word of God and the established rules, and which tend to pro- mote the edification of the Church ; and, finally, to propose to the General Assembly, for their adoption, such measures as may be of common advantage to the whole church.” The synod is constituted with at least seven min- isters, and as many elders as may be present. Over the said synods is the general assembly, which re- presents in one body all the particular churches of the denomination, and is composed of an equal delega- tion of ministers and elders from each presbytery, upon a certain basis of representation fixed by said Form of 9) Government. It is provided in said Form of Govern- ment that : ‘The General Assembly shall receive and issue all appeals, complaints, and references that affect the doc- trine or constitution of the Church, which may be reg- ularly brought before them from the inferior judica- tories, provided, that in the trial of judicial caves the General Assembly shall have power to act by commis- sion, in accordance with the provisions on the subject of judicial commissions in the Book of Discipline. They shall review the records of every synod, and ap- prove or censure them ; they shall give their advice and instruction in all cases submitted to them in conformity with the constitution of the Church; and they shall constitute the bond of union, peace, correspondence, and mutual confidence among all our churches. To the General Assembly also belongs the power of deciding in all controversies respecting doctrine and discipline ; of reproving, warning or bearing testimony against error in doctrine, or immorality in practice, in any church, presbytery or synod; of erecting new synods when it may be judged necessary ; of superin- tending the concerns of the whole Church ; of corre- sponding with foreign churches, on such terms as may be agreed upon by the Assembly and the correspond- ing body ; of suppressing schismatical contentions and disputations; and, in general, of recommending and attempting reformation, of manners, and the pro- motion of charity, truth, and holiness, through all the churches under their care. Plaintiffs attach to their Bill of Complaint and make a part thereof a copy of the Form of Govern- ment, Book of Discipline, of the Presbyterian Church in the United States of America, and also Acts of the General Assembly relating thereto, marked B, and craves leave to read the same on the trial hereof the same as if each and all were set out in full herein. In accordance with the constitution of the said church, on information and belief that the said presbytery of New York was, on or about the 21st day of June, 1870, constituted, and included within its membership, all the ministers and churches of the Presbyterian church in the United States in Man- hattan Island, including therein the said Westminster 33 34 35 38 39 40 10 Pesbyterian Church and West Twenty-third Street Church, predecessors of the present Westminster Presbyterian Church of West Twenty-third Street, and within the boundaries of said Manhattan Island, there is no other presbytery belonging to the Presbyterian church in the United States of America, or in any way attached thereto, or con- nected therewith ; that the said presbytery of New York forms a part of the synod of New York, which said synod of New York has its boundaries coter- minous with the State of New York, and all of New Kngland, and embraces within its jurisdiction and control all the churches of the Presbyterian church in the United States of America within said State of New York and New England, and within the boundaries of Manhattan Island the only authority within said church to transfer the said individual churches, or any of them, to any other presbytery in the said Synod of New York, and said synod has taken no action respecting the transfer of said Westminster Presbyterian Church of West Twenty-third Street from the Presbytery of New York to any other Presbytery. 4. On information and belief, that the said defend- ants, while respectively acting as pastor and members of the session and trustees of said Westminster Pres- byterian Church of West Twenty-third Street, caused a meeting of a portion of the congregation of said church to be heid on the 31st day of January, 1906, and at said meeting the following resolutions were sub- mitted and voted upon, to wit : “Whereas this church possesses its own individual right to decide its ecclesiastical relations, if any ; and Whereas we are convinced that the prosperity and usefulness of this church require that we sever all con- nection with, and withdraw from the presbytery of New York ; therefore be it Resolved that we do now sever our connection with, and withdraw from the presbytery of New York, and become independent of that body. Second. That we respectfully request our pastor, the Rey. John Lloyd Lee, D. D., to join with us in this act of severance, and withdrawal. di. Third. That the clerk of this meeting be directed to transmit a draft of these resolutions to the stated clerk of the New York presbytery.” That following said meeting and the adoption of said resolutions by a portion of the members of said West- minster Presbyterian Church of West Twenty-third Street, present and participating, the following com- munication was forwarded to the stated clerk of the presbytery of New York, to wit: ‘‘ WESTMINSTER PRESBYTERIAN CHURCH, Rey. John Lloyd Lee, D. D., Pastor. 214 West 23d Street, New York City, N. Y. Yes. 1st, 1906. Rey. F. E. SHearer, D. D., Stated Clerk of the Presbytery of New York. DEAR Sir :—I am directed by the Westminster Pres- byterian Church of West 23d Street, to transmit to you the following resolutions which were unanimously adopted Wednesday evening, January 31, 1906, at a meeting regularly called and largely attended in West- minster Church ; Whereas this church possesses its own individual right to decide its ecclesiastical relations, if any, and ; Whereas we are convinced that the prosperity and usefulness of this church require that we sever all con- nection with and withdraw from the presbytery of New York ; therefore, be it Resolved that we do now sever all connection with and withdraw from the presbytery of New York and become independent of that body. Second. That we respectfully request our pastor, Rev. John Lloyd Lee, D. D., to join with us in this act of severance and withdrawal. Third. That the clerk of this meeting be directed to transmit a copy of these resolutions to the stated clerk of the presbytery of New York. A true copy from the records. JoHN H. DELAMATER, Clerk of the meeting.” That concurrently with the transmittal of the said communication to the said stated clerk, the said de- 41 42 43 44 12 45 fendant, John Lloyd Lee, transmitted to the said stated 46 47 48 clerk of the presbytery of New York, the following communication : “ WESTMINSTER PRESBYTERIAN CHURCH, Rey. John Lloyd Lee, D. D., Pastor, 214 West 23d Street, New York City. Frps. 1st, 1906. To THE PrespyTErRy OF New York, Rev. F. E. SHrarer, D. D., Stated Clerk. Kindly take notice that I have renounced the juris- diction of your church by becoming independent. I call your attention to your Book of Discipline, Section 53, which says that in such a case “the Presbytery shall take no other action than to record the fact and erase his name from the roll. Very sincerely yours, JoHN Lioyp Ler.” That thereafter at a regular meeting duly convened of the Presbytery of New York, held on the 12th of February, 1906, the following proceedings relating to the said action of the Westminster Presbyterian Church of West Twenty-third Street were had by said presbytery : The Moderator’s Advisory Council reported a com- munication to the Presbytery from the Rev. John Lloyd Lee, D. D., and that it had considered the same and recommended the adoption of the preamble and resolution, to wit: Wuereas, the Rev. John Lloyd Lee, D. D., a min- ister in the Presbyterian Church in the United States of America, and a member of this Presbytery, and pastor of the Westminster Presbyterian Church of West Twenty-Third Street, in the City of New York, has sent to this Presbytery the following communica- tion: 13 WESTMINSTER PRESBYTERIAN CHURCH Rev. John Lloyd Lee, D. D., Pastor, 214 West 23d Street, New York City. Frprvuary Ist, 1906. To THE PresByreRY OF NEw York, Rey. F. E. Shearer, D. D., Stated Clerk. Kindly take notice that I have renounced the juris- diction of your Church by becoming independent. T call your attention to your Book of Discipline, Section 538, which says that in such a case ‘‘ the Pres- bytery shall take no other action than to record the fact and erase his name from the roll”. Very sincerely yours, JOHN Lioyp LEE and has abandoned the ministry of and has renounced the jurisdiction of the Presbyterian Church in the United States of America, and become independent ; Resolved: That Presbytery makes the foregoing record of the fact and erases the name of the said John Lloyd Lee from the roll of the Presbytery of New York. On motion, the foregoing preamble and resolution were unanimously adopted. In the Presbytery of New York, Feb. 12, 1906: “The Moderator’s advisory counsel recommended the adoption of the following preamble and resolutions, to wit: Whereas the pastoral relation between John Lloyd Lee and the Westminister Presbyterian Church of West Twenty-Third Street has ceased to exist by reason of his abandoning the ministry of the Presby- terian Church in the United States of America and re- nouncing the jurisdiction of said charch and becoming independent and by his name being duly erased from the roll of this Presbytery upon the record of the fact by Presbytery, Resolved that the Presbytery makes record of the dissolution of the pastoral relation between John Lloyd Lee and the Westminister Presbyterian Church of West Twenty-Third Street by said act of withdrawal and that the same be and is hereby dissolved. Resolved that the Rev. George Alexander be and he is hereby appointed moderator of the session of the 49 50 51 53 54 55 56 14 said Westminster Presbyterian Church of West Twenty-third Street. On motion the foregoing preamble and resolutions were unanimously adopted.” _ That said meeting of Presbytery also took the fol- lowing action : The Presbytery having been regularly convened and duly constituted and’ more than a quorum being present, inter alia. The Moderator’s advisory counsel reported acommunication to the Presbytery from the clerk of a meeting of the Westminster Presbyterian Church of West 25d Street received by the stated clerk of Presbytery and that it had considered the same and recommended the adoption of the following preamble and resolution, to wit: “ Wuereas Presbytery has been well advised of the unconstitutional proceedings of the Westminster Presbyterian Church of West 23d Street by the com- munication following, to wit: “ WESTMINSTER PRESBYTERIAN CHURCH, Rey. John Lloyd Lee, D. D., Pastor. 214 West 23d Street, New York City. Frs. Ist, 1906. - Rey. F. E. SHearer, D. D., Stated Clerk of the Presbytery of New York. I am directed by the Westminster Presbyterian Church of West 23d Street to transmit to you the fol- lowing resolutions which were wnanimously adopted Wednesday evening, January 31, 1906, at a meeting regularly called and largely attended in the West- minster Church : Wuereas this church possesses its own individual right to decide its ecclesiastical relations, if any ; and WHEREAS we are convinced that the prosperity and usefulness of this church require that we sever all con- nection with and withdraw from the Presbytery of New York ; therefore, be it resolved that we do now sever all connection with and withdraw from the Presbytery of New York and become independent of that body. Srconp. That we respectfully request our pastor, Rey. John Lloyd Lee, D. D., to join with us in this act of severance and withdrawal. 15 Tatrp. That the clerk of this meeting be directed to transmit a copy of these resolutions to the stated clerk of the Presbytery of New York for the presbytery. A true copy from the records. JoHN H. DeLamarer Clerk of the meeting.” And Wuerreas John Lloyd Lee, late pastor of the Westminster Presbyterian Church of West Twenty- third Street has abandoned the ministry of the Pres- byterian Church in the United States of America and renounced the jurisdiction of said Presbyterian Church and become independent and the name of said Lee has been erased from the roll of this Presbytery upon the record of the fact by Presbytery and the pastoral relation between said Lee aud said Westminister Church of West 23d Street has been declared dissolved by the presbytery : Resolved that the communication of John H. DeLa- mater, clerk of the meeting of January 31, 1906, and the subject-matter thereof be referred to the Trustees of Presbytery for consideration and with power to them to take such action as_ they may be advised to safeguard and_ protect the property, real and personal, of the said West- minister Presbyterian Church of West 23d Street and to enforce the rights of the Presbytery and of the Presbyterian Church in the United States of America and the members of said bodies, whether in the name of said Trustees of said Presbytery or said Church or any of them or any member or members thereof.” The plaintiffs further allege on information and belief that, subsequent to the said meeting of the Presbytery, and on the 17th day of February, 1906, the said Rev. George Alexander, in accordance with his appointment as moderator of the said session of the Westminster Presbyterian Church of West Twenty-third Street, addressed a communication to the said session, and forwarded the same to John H. DeLamater, clerk of the said session, requesting said DeLamater to advise said Alexander when and where it would be agreeable for the said session to meet, in order that a meeting might be called and the affairs of the said church be rightfully considered by the said session, a copy of the 57 58 59 60 61 63 64 16 said communication of the said Alexander being as follows : “47 UNIVERSITY PLACE, N. Y. City, February 17th, 1906. Mr. Joun H. DeELAmateRr, Clerk of Session, 63 West 71st Street, N. Y. My Dear Sir:—Referring to the action of the Presby- tery at its meeting on the 12th inst. appointing me moderator of the session of the Westminster Presby- terian Church of West Twenty-Third Street, I hereby advise you of the fact, and request you to write me, after consultation with the other elders composing the session, informing me when and where it will be agree- able to the session to have me as such moderator call a meeting of the session. Very truly yours, GEORGE ALEXANDER.” That in answer thereto the said Alexander received from the said session the following communication : “ NEW York, February 21st, 1906. Dear Sir :— Your courteous letter of February 17th instant, to the Clerk of this Session has been referred to it by him and after due consideration given to’ your said letter, I am instructed by the session to transmit to you the following : You are respectfully informed, first, that this church at a regularly called and largely attended meeting of the church on January 31st, 1906, voted unanimously to sever all connection with the Presbytery of New York, and that the said Presbytery has beeu notified of this fact. Second, that this session, both as mem- bers of the church and by suitable resolution, joined in that withdrawal. Third. This being the case, neither this church nor this session can, at any time or under any circumstances, receive or consider any communi- cation from you or from any one representing the Presbytery of New York, or from the Presbytery of New York itself, or consider for one moment from the Presbytery any proposition on the supposition that we are In any sense connected with or responsible to the Presbytery of New York, fur we are not; or on the 17 supposition that the said Presbytery has any jurisdic- 66 tion whatsoever in the affairs of this church. Very truly yours, Joun H. DeLAmarter, Clerk, 63 W. 71st St., INGA: Rey. GrorGE ALEXANDER, D. D., 47 University Place, Manhattan, City.” That thereupon the said Rev. George Alexander, D. D., reported the action of the said session to the Presbytery of New York, at its meeting of March 12th, ¢¢ 1906, in a communication as follows, to wit: ‘©A47 University Puacs, N. Y. Crry March 9, 1906. To THE MODERATOR OF THE PRESBYTERY OF NEw YORK. Dear str :—As Moderator of the Westminster Pres- byterian Church of West 23rd Street, appointed by Presbytery at its meeting on the 12th day of February, 1906, I have to report that on the 17th of February, 1906, I sent to the Clerk of Session of said church, Mr. John H. DeLamater, the following communication : 67 ‘©47 University Pruaceg, N. Y. Crry February 17, 1906. Mr. Jonn H. DreLAmater, Olerk of Session, 63 West 71st Street, N. Y. My pear str :—Referring to the action of Presbytery at its meeting on the 12th inst. appointing me Moder- ator of the Session of the Westminster Presbyterian Church of West Twenty Third Street, [ hereby advise you of the fact, and request you to write me, after con- 63 sultation with the other Elders composing the Session, informing me when and where it will be agreeable to the Session to have me as such Moderator call a meet- ing of the Session. Very truly yours, GEORGE ALEXANDER. No member of Session of said church communicated with me in person, but about the 21st of February I received from the Clerk of said Session the following communication : “69 70 71 72 18 New York, February 21st, 1906. Deak sir :—Your courteous letter of February 17th instant, to the Clerk of this Session has been referred to it by him, and after due consideration given to your said letter, I am instructed by the Session to transmit to you the following: You Are RESPECTFULLY INFORMED: I—That this Church at a regularly called and largely attended meeting of the Church, on January 31st, 1906, voted unanimously to sever all connection with the Presbytery of New York, and that the said Presbytery has been notified of the fact. II—That this Session, both as members of the Church and by suitable resolution, joined in that with- drawal. Iii—This being the case, neither this Church nor this Session can, at any time or under any circum- stances, receive or consider any communication from you or from any one representing the Presbytery of New York, or from the Presbytery of New York itself, or consider for one moment from the Presbytery any proposition on the supposition that we are in any sense connected with, or responsible to the Presbytery of New York, for we are not; or on the supposition that the said Presbytery has any jurisdiction whatso- ever in the affairs of this Church. Very truly yours, Jno. H. DELAMATER, Clerk, 63 W. 71st Str., N. Y. Rey. GEORGE ALEXANDER, D.D., 47 University Place, Manhattan, City.” That thereupon the Presbytery adopted the follow- ing action : “ The Moderator’s advisory council reported a com- munication to Presbytery from Rev. Dr. George Alex- ander; Moderator of the Westminister Presbyterian * Church of West 23rd Street, appointed by Presbytery at its meeting of February 12, 1906, upon the occasion of the dissolution of the pastoral relation between the said Westminister Presbyterian Church of West 23rd Street and its then pastor, and that it had considered 19 the same and recommended the adoption of the follow- ing preamble and resolution, to wit : Wuereas: On the 12th day of February, 1906, the following proceedings were taken : In THE PRESBYTERY OF NEw YORK 2 February’12, 1906. — = § The Presbytery having been regularly convened and duly constituted and more than a quorum being present inter alia, The Moderator’s Advisory Council reported a com- munication to the Presbytery from the Reverend John Lloyd Lee, D. D. and that it bad considered the same and recommended the adoption of the following pre- amble and resolution, to wit: Wuereas, the Reverend John Lloyd Lee, D.D., a minister in the Presbyterian Church in the United States of America, and a member of this Presbytery, and Pastor of the Westminister Presbyterian Church of West Twenty-third Street, in the City of New York, has sent to this Presbytery the following communi- cation : WESTMINSTER PRESBYTERIAN CHURCH Rev. John Loyd Lee, D. D., Pastor 214 West 23rd Street, New York City Frepruary Ist 1906. To THE’ PRespyTERY oF NEw York, Rey. F. E. Shearer, D. D., Stated Clerk. Kindly take notice that I have renounced the juris- diction of your Church by becoming independent. I call your attention to your Book of Discipline, Section 53, which says that in such a case ‘“ the Pres- bytery shall take no other action than to record the fact and erase his name from the roll.” Very sincerely yours, JoHN Lioyp LEE. and has abandoned the ministry of and has renounced the jurisdiction of the Presbyterian Church in the United States of America, and become independent : ftesolved : That Presbytery makes the foregoing record of the fact and erases the name of said John Loyd Lee from the roll of the Presbytery of New York. 13 74 76 77 79 80 20 On motion, the foregoing preamble and resolution were unanimously adopted. A true extract from the Minutes. Attest, Freprric E. SHEARER, Stated Clerk. In rHE PresBpyTERY OF NEW YORK ? February 12, 1906. The Presbytery having been regularly convened and duly constituted and more than a quorum being pres- ent, ~nter alia, The Moderator’s Advisory Council recommended the adoption of the following preamble and resolutions, to wit : Wuerneas, the pastoral relation between John Lloyd Lee and the Westminster Presbyterian Church of West Twenty-third Street has ceased to exist by reason of his abandoning the ministry of the Presbyterian Church in the United States of America and renouncing the jurisdiction of said Church and becoming independent and by his name being duly erased fron the roll of this Presbytery upon the record of the fact by Presbytery, Resolved : That the Presbytery makes record of the dissolution of the pastoral relation between John Lloyd Lee and the Westminster Presbyterian Church of West Twenty-third Street by said act of withdrawal and that the same be and is hereby dissolved. Resolved: That the Rev. George Alexander be and heis hereby appointed Moderator of the Session of the said Westminster Presbyterian Church of West Twenty-third Street. On motion the foregoing preamble and resolutions were unanimously adopted. A true extract from the Minutes. Attest, FreEpDERIC E. SHEARER, Stated Cierk. In tHE PResspyrery oF New York, February 12, 1906. The Presbytery having been regularly convened and duly constituted and more than a quoram being pres- ent, inter alia, The Moderator’s Advisory Counsel reported a com- munication to the Presbytery from the Clerk of a meet- 21 ing of the Westminster Presbyterian Church of West Twenty third Street, received by the Stated Clerk of Presbytery, and that it had considered the same and recommended the adoption of the following preamble and resolution, to wit: Wuereas, Presbytery has been well advised of the unconstitutional proceedings of the Westminster Pres- byterian Church of West Twenty-third Street by the communication following, to wit : Westminster Presbyterian Church, } Rev. John Lloyd Lee, D.D., Pas- | tor, 214 West 23rd Street, r New York City. J February Ist, 1906. Rev. F. E. Sararer, D.D., Stated Clerk of the Presbytery of New York. I am directed by the Westminster Presbyterian Church of West Twenty-third Street, to transmit to you the following resolutions which were unanimously adopted, Wednesday evening, January 31st, 1906, at a meeting regularly called, and largely attended, in the Westminster Church : Wuereas, This Church possesses its own individual right to decide its ecclesiastical relation, if any, and Waereas, We are convinced that the prosperity and usefulness of this Church require that we sever all con- nection with, and withdraw from, the Presbytery of New York, therefore be it RESOLVED : 1. That we do now sever all connection with, and withdraw from, the Presbytery of New York, and be- come independent of that body. 2. That we respectfully request our Pastor, the Rev. John Lloyd Lee, D.D., to join with us in this act of severance and withdrawal. ' 3. That the Clerk of this meeting be directed to transmit a copy of these Resolutions to the Stated Clerk of the Presbytery of New York, for the Presby- tery. A true copy from the records. JHo. H. DELAMATER, Clerk of the Meeting. AND Wuergas, John Lloyd Lee, late Pastor of said Westminster Presbyterian Church of West Twenty- 81 82 83 8t 85 86 87 £8. 22 third Street, bas abandoned the ministry of the Pres- byterian Church in the United States of America, and renounced the jurisdiction of said Presbyterian Church and become independent and the the name of said Lee has been erased from the roll of this Presbytery upon the record of the fact by Presbytery and the pastoral relation between said Lee and said Westminster Church of West Twenty-third Street has been declared dis- solved by Presbytery. Resotvep : That the communication of Jobn H. De- Lamater, Clerk of the meeting of January 31st, 1906, and the subject matter thereof be referred to the Trus- tees of Presbytery for consideration, and with power to them to take such action as they may be ad- vised to safeguard and protect the property, real and personal, of the said Westminster Presbyterian Church of West Twenty-third Street, and to enforce the rights of the Presbytery and of the Presbyterian Church in the United States of America, and the members of said bodies, whether in the name of said Trustees of said Presbytery, or said Church, or any of them or any member or members thereof. On motion the foregoing preamble and resolution were unanimously adopted. A true extract from the Minutes. Attest, FRepERIC E. SHEARER, Stated Clerk. WuerzrAs Presbytery is well advised of the following unconstitutional proceedings of the Session of the Westminster Presbyterian Church of West 23rd Street by the communication following, to wit : 47 University Puace, N. Y. Crry March 9, 1906. To THE MODERATOR OF PRESBYTERY OF NEW YORK: Dear Str :—As Moderator of the Westminster Pres- byterian Church of West 23rd Street, appointed by Presbytery at its meeting on the 12th day of Febrn- ary, 1906, I have to report that on the 17th day of February, 1906, I sent to the Clerk of Sessions of said ehurch, Mr. John H. DeLamater, the following com- munication : 23 ‘© 47 University Puace, N. Y. Crry February 17th, 1906. Mr. Joun H. DreLAmarer, Clerk of Session, 63 West 71st Street, N. Y. My pEar Sm: Referring t. the action of Presbytery at its meeting on 12th inst. appointing me Moderator of the Session of the Westminster Presbyterian Church of West Twenty-third Street, I hereby advise you of the fact, and request you to write me, after consultation with the other Elders composing the Session, inform- ing me when and where it will be agreeable to the Session to have me as such Moderator call a meeting of the Session. Very truly yours, GEORGE ALEXANDER.” No member of Session of said church communicated with me in person, but about the 21st of February I received from the Clerk of said Session the following communication : “ New York, February 21st, 1906. Deak Sir :—Your courteous letter of February 17th instant, to the Clerk of this Session has been referred to it by him, and after due consideration given to your said letter, I am instructed by the Session to trans- mit to you the following : You ArE RESPECTFULLY INFORMED : I—That this Church at. a regularly called and largely attended meeting of the Church, on January 31st, 1906, voted unanimously to sever all connection with the Presbytery of New York, and that the said Presbytery has been notified of this fact. II—That this Session, both as members of the Church and by suitable resolution, joined in that with- drawal. Ii1—This being the case, neither this Church nor this Session can, at any time or under any circum- stances, receive or consider any communication from you or from any one representing the Presbytery of New York, orfrom the Presbytery of New York itself, or consider for one moment from the Presbytery any proposition on the supposition that we are in any sense 89 90 91 92 93 94 96 24 connected with, or responsible to the Presbytery of New York, for we are not ; oron the supposition that. the said Presbytery has any jurisdiction whatsoever in the affairs of this Church. Very truly yours, Jno. H. DELAMATER, Clerk, 63 W. 71st St., IN SY Rev. GrorGE ALEXANDER, D. D., 47 University Place, Manhattan, City.” In THE PRESBYTERY OF New YORK. March 12th, 1906. The Presbytery having been regularly convened and duly constituted, and more than a quorum being present, inter alia, Resolved : That the following persons, to wit: John H. DeLamater, John D. Cluss, Bradford L. Gilbert, John E. Heartt, Homer Lee, James B. Lindsay, Carson G. Archibald, James C. Gulick, Edward H. Slocum, being all the Ruling Elders and the members of Ses- sion of the said Westminster Presbyterian Church of West 23rd Street, both as members of said church and by resolution of Session, have united with other mem- bers of said church in their attempt to sever all con- nection with, and to withdraw from, the Presbytery of New York, and become independent of that body in their so-called church meeting of January 31st, 1906, and have notified Presbytery of that fact, and in their request to their late pastor, John Lloyd Lee to join in such act of severance and withdrawal, and that the said members of Session renounce the jurisdiction of Presbytery and refuse to recognize the authority of Presbytery. vesolved : That in the interests of the spiritual wel- fare of the said Westminster Presbyterian Church of West 23rd Street and of Presbytery, and of the Pres- byterian Church in the United States of America, John H. DeLamater, John D. Cluss, Bradford UL. Gilbert, John K. Heartt, Homer Lee, James B. Lindsay, Carson G. Archibald, James C. Gulick, Edward H. Slocum, be, and they hereby are and each of them is deposed and removed from their offices, respectively, as such Ruling Elders in the Presbyterian Chureh and for- bidden to exercise any of the duties of said office in the said Westminster Presbyterian Church of West Twenty-third Street. 25 fesolved : That in view of the fact that they have renounced the jurisdiction of the Presbyterian Church in the United States of America, and removed them- selves from its membership, as understood by the Pres- bytery, the Presbytery has no alternative but to recog- nize the fact and erase their names from the roll of the membership of said Church. LPesolved : That Rey. William R. Richards, D,D. Theron G. Strong Rey. George Nixon William E. Magie be appointed a committee with the Moderator, ap- pointed by Presbytery, to call a meeting of the mem- bers of said church who remain and are loyal to the Presbyterian Churgh in the United States of America, and to this Presbytery, for the election of Ruling Elders, if suitable persons can be found to accept such office for the purpose of exercising their office in said church. In THE PRESBYTERY OF NEw York. March 12th, 1906. The Presbytery having been regularly convened and duly constituted, and more than a quorum being pres- ent, enter alia. RESOLVED, In view of the Rev. Dr. George Alexan- der’s intended absence from the country, his resigna- tion as Moderator of Session of the Westminster Presbyterian Church of West 23rd Street be accepted and that in his place Rev. Robert Mackenzie, D. D., be, and hereby is, appointed by Presbytery Moderator of the said Westminster Presbyterian Church of West 23rd Street.” Plaintiffs aver on information and belief that under the Form of Government and Book of Dis- cipline of the Presbyterian Church, the said John Lloyd Lee, by renouncing the jurisdiction of the church and becoming independent, ceased to be a member of The Presbyterian Church in the United States of America and zpso facto ceased to be pastor of the said Westminster Presbyterian Church of West Twenty-third Street as’ declared and determined by said Presbytery of New York ; and that there- upon it was a legitimate exercise of the power of the Presbytery to appoint a moderator for the said 97 98 99 100 101 102 103 104 26 session from one of the members of the said Presby- tery. Plaintiffs further allege that under Section 2 of Article 46 of Chapter 97 of the Laws of New York of 1902, if any trustee of an incorporated church to which this article is applicable having been a member of such church, ceases to be such member, his office as trustee shall be vacant. And plaintiffs allege on information and belief that the action of said mem- bers of said session, in repudiating the jurisdiction of the Presbytery of New York, followed by the action of the Presbytery of New York in removing them from their office as elders. and terminating their membership in The Presbyterian Church of the United States of America, vacated their office as trus- tees, and that by such vacation of their offices they ceased to have any right, power or authority to act for, or on behalf of the said Westminster Presby- terian Church of West Twenty-third Street as trustees thereof, and that there are now no trustees of said Westminster Presbyterian Church of West Twenty- third Street qualified to act for and on behalf of said church until the members of said church, adhering to it, and to the Presbyterian Church in the United States of America under the advice and direction of the Committee of the Presbytery of New York, shall have chosen members of the session of said church, and they shall have been inducted into office. Plaintiffs allege further on information and _ be- lief, that after the said John Lloyd Lee ceased to be the pastor of the said church, he ceased to have any right, power or authority to occupy any portion of the property of the said Westminster Presbyterian Church, or to occupy the pulpit of the said church as a minister thereof, or to receive any portion of the revenues of said church, and that the said defendants had no right to appropriate any portion of the revenues of said church to the payment of said John Lloyd Lee for any services on account of any alleged pastoral relation of said Lee to said church. These plaintiffs and each of them say that they 27 have not consented to, participated in, or waived their right to object to all the foregoing illegal, and unconsti- tutional proceedings as hereinbefore set forth, but that they have at all times remained members of the said Westminster Presbyterian Church of West Twenty- third Street, and loyal to the Presbytery of New York and to The Presbyterian Church in the United States of America. Plaintiffs say that the said Westminster Presbyte- rian Church of West Twenty-third Street is the owner of a certain lot or parcel of land, situate, lying and being in the city of New York bounded and described as follows : Beginning at a point on the southerly side of West Twenty-Third Street, distant one hundred feet westerly from the southwesterly corner of Seventh Avenue and said West Twenty-Third Street, running thence south- wardly and parallel with Seventh Avenue one hundred and eighteen feet and nine inches ; thence westwardly, parallel with West Twenty-Third Street, one hundred feet ; thence northwardly again, parallel with Seventh Avenue one hundred and eighteen feet and nine inches to the southerly side of West Twenty- Third Street ; and thence eastwardly along said south- erly side of West Twenty-Third Street one hundred feet to the point or place of beginning. That located thereon is a church building devoted to the purposes of public worship, and a manse for the occupation of the pastor of said church, and located in the said buildings is personal property used in con- nection with the said church, and the worship and church services conducted therein. (5) Plaintiffs allege that the defendants illegally and without right retain control and possession of the said property belonging to the Westminster Pres- byterian Church of West ‘Twenty-third Street, and refuse to give the plaintiffs possession of the same, and said defendants illegally and without right claim the right to thus control the use and pos- session of the same, and to use the revenues of the same for the maintenance of a church and church serv- 105 106 107 108 109 110 411 112 28 ices, wholly independent of the Presbytery of New York, and wholly free from its supervision and control. Wuererore plaintiffs pray that the court order, adjudge and decree that the said John Lloyd Lee is not the pastor of said church, or entitled to officiate in the pulpit therein as such pastor and is not entitled as such pastor longer to occupy any part of the property belonging to said Westminster Presbyterian Church of West Twenty-third Street, and that the said John H. DeLamater, John D. Cluss, Bradford L. Gilbert, John K. Heartt, Homer Lee, James B. Lindsay, Carson G. Archibald, James C. Gulick, and Edward H. Slocum, have ceased to be members or trustees of said West- minster Presbyterian Church of West Twenty-third Street and of “ The Presbyterian Church in the United States of America,” and that they have no right, power, or authority to control the said property or any of the same or to occupy or use the same or any revenues arising from the same or any part thereof for any pur- pose whatever, but that the plaintiffs and those associ- ating with them and retaining their membership in the said Westminster Presbyterian Church of West Twenty-third Street and who remain connected with the Presbytery of New York and _ with “The Presbyterian Church in the United States of America” are entitled to the control, pos- session, occupancy, and use of the said church property and every part thereof, and of the books, papers and documents constituting the records of said church, for the purposes of carrying on the work of the said Westminster Presby- terlan Church of West Twenty-third Street under the direction, advice, and control of the Presby- tery of New York, and that pending the trial of this action, the said defendants, John Lloyd Lee, John H. DeLamater, John D. Cluss, Bradford L. Gilbert, John E. Heartt, Homer Lee, James B. Lind- say, Carson G. Archibald, James C. Gulick and Edward H. Slocum, and each of them, may be enjoined from using, occupying or possessing, the said church property or any part thereof, or any 29 of the income and_ revenues thereof, and from interfering with the occupancy, use, possession, or control of the same by said plaintiffs and other members of said Westminster Presbyterian Church of West Twenty-third Street associating with the plaint- iffs under the direction, advice and control of the Presbytery of New York, and that the said defendants and each of them may be required to account for all moneys or property belonging to said Westminster Presbyterian Church of West Twenty-third Street which they or either of them have diverted since the said meeting of January 31, 1906, to any use or pur- pose not connected with the Westminster Presbyterian Church of West Twenty-third Street, and for such other and further relief as equity may require and the facts sustain. RusH TaGGcart, Attorney for the Plaintiffs. Office 195 Broadway, New York City. Stare oF New York, ) County of New York. § WaLter Finpuay, being duly sworn, says he is one of the plaintiffs in the above-entitled action; that he has read the foregoing complaint and knows the con- tents thereof and -that the same is true to his own knowledge except as to the matters therein stated to be alleged upon information and belief and that as to those matters he believes it to be true. Affiant further says that the sources of his information as to the membership of the other plaintiffs in the said church as stated in said complaint and the grounds of his belief are participation in meetings of said corpora- tion, and knowledge of the presence thereat and par- ticipation therein of the other plaintiffs above named, 113 114 115 116 117 118 119 120 30 as reputed members of said church and their recogni- tion as such members by the officers, and representa- tives of said church; that the sources of affiant’s in- formation and the grounds of his belief as to the consolidation of the said Westminster Presbyterian Church of West Twenty-Third Street is the copy of the proceedings relating thereto attached to the fore- going bill of complaint; and that affant’s knowledge of the transactions of the said Westminster Presby- terian Church of West Twenty-Third Street, at the congregational meeting of January 31, 1906, its com- munications to presbytery, and the action of presbytery in connection therewith, is derived from the official record of said proceedings, respectively, copies of which are set out in full in the foregoing complaint, and that he believes in the accuracy of the informa- tion imparted to him in the manner and by the docu- ments above described. WaALrer FInpLay. Sworn to before me this 27 day of March, 1906. B. W. J. Fox, [SEAL, | Notary Public, Kings Co., Ney Certificate filed in New York County. dl Exhibit A. Ata Special Term of the Supreme Court, held in and for the City and County of New York at the County Court House in said City, on the 19 day of April, 1889. Present—HonorasLe GrorGE L. INGRAHAM, Justice. In THE MATTER OF | The Application of THE West | TWENTY-THIRD STREET PRESBYTERIAN Cuurca, of the City of New York, and the WESTMINSTER PRESBYTERIAN Cuurcu, of the City of New York, for an order authorizing said cor- porations to unite and consolidate | under the name of the WESTMINSTER | PRESBYTERIAN CHURCH OF WEST | TWENTY-THIRD STREET. The West Twenty-third Street Presbyterian Church and the Westminster Presbyterian Church having presented their separate petitions, verified the 16th day of April, 1889, to this Court, praying that an order may be granted for the union and consolidation of said churches and setting forth that each of said petitioners is a religious corporation, incorporated under the provisions of the 3rd section of chapter 60 of the Laws of 1813, entitled “ An Act to provide for the incorporation of religious societies,’ and the several acts amendatory thereof or supplemental thereto, and also setting forth the reasons for such union and consolidation, the agreement hereinafter described, all the property real and personal, and all the debts and liabilities, and the amount and sources of the annual income of each of said corporations 121 122 231 124 125 126 127 128 32 respectively ; and that said corporations have entered into an agreement under their respective corporate seals for the nnion and consolidation of said cor- porations, setting forth the terms and conditions | thereof, the name of the proposed new corporation, the names of the persons who shall be its ministers, elders, deacons and trustees until the first annual election of the proposed new corporation, and fixing the day of its annual election; and it further appearing from said petitions that a meeting of each of the said corporations, to consider and act upon the proposed union and consolidation and the agreement and petition therefor, was called by a notice given in the same manner and for the same length of time as is provided for notices of the election of trustees in the 3rd section of the act above mentioned, and that the proposed union and consolidation and the agreement and petition therefor, received the approval of three- fourths of the persons entitled to vote at an election of trustees at each of the corporations assembled at such meeting respectively. Now, upon said petitions and upon said agreement and the proceedings of the meetings held as above, set forth in said verified petitions and upon reading and filing said petitions and on motion of Theron G. Strong, of counsel for petitioners, Iv IS ORDERED that the prayers of said petitioners be and the same hereby are granted and that the West Twenty-third Street Presbyterian Church and the Westminster Presbyterian Church, be, and they hereby are united and consolidated: under the name of The Westminster Presbyterian Church of West Twenty- third Street, and that the terms, conditions and provisions of said union and consolidation be, and they hereby are, set forth in the agreement dated April 3rd, 1889, between the West Twenty-third Street Presbyterian Church and the Westminster Presbyterian Church a copy whereof is set forth in each of the said petitions upon which this order is made. Enter. Go liae 33 SUPREME COURT, Ciry AND County or New York. In THE MATTER ee Re ee ee OF The Application of ‘CHE West TWENTY-THIRD STREET PRESBYTER- IAN CHURCH OF THE City oF NEW York and Tur WESTMINSTER PREs- BYTERIAN CHURCH OF ‘THE CITY OF | New York for an order authoriz- ing said corporations to unite and consolidate under the name of The Westminster Presbyterian Church of West Twenty-third Street. The petition of the West Twenty-third Street Pres- byterian Church respectfully shows : I. That your petitioner is a religious corporation duly incorporated under the Act entitled ‘“ An Act for the Incorporation of Religious Societies,” passed April 5, 1813, and the acts amendatory thereof. If. That your petitioner is desirous of uniting and consolidating with the Westminster Presbyterian Church of the City of New York and an arrangement has been made with said Westminster Presbyterian Church for a union and consolidation with your peti- tioner subject to the consent of this Honorable Court. III. That the reasons for such union and consolida- tion are as follows : Your petitioner owus and occupies a large and con- venient church edifice near the corner of Twenty-third 129 130 131 132 133 134 135 136 od Street and Seventh Avenue and numbered 208, 210, 212 and 214 West Twenty-third Street, and owns and possesses a parsonage for the use of its pastor ; that the expenses for caring for said property and conduct- ing public worship in said church and the usual weekly meetings are very large, while its congregation, by reason of changes taking place in its immediate vicin- ity and the tendency of residents of that portion of the City to move up town, have resulted in diminishing the number of its stated worshipers, thus reducing its income to a considerable extent ; that only about sixty nine out of one hundred and filty-nine of its pews are now rented, either in whole or in part, and it is nec- essary to devise some plan by whith the pews may be rented in order to produce an annual income sufficient to meet its running expenses ; that the Westminster Presbyterian Church is situated on West Twenty sec- ond. Street between Sixth and Seventh Avenues and is not more than seven hundred feet distant from the prop- erty of your petitioner ; that your petitioner refers to. the petition of the said Westminster Presbyterian Church which, as your petitioner is informed and believes is to be presented simultaneously with this petition for a statement of the circumstances and condition of the said Westminster Presbyterian Church and its reasons for desiring such union and consolidation as a true statement of such circumstances and conditions and reasons for such union and consolidation and refers to said petition as a part hereof ; that your petitioner is able under ordinary circumstances to accommodate in its church edifice the congregation of the West- minster Presbyterian Church and _ to ~ furnish sittings for the same and _ believes’ that with such increased congregation a __ sufficient income will be derived to meet all the necessary ex- penses of caring for and maintaining worship in your petitioner’s church; that in aldition thereto, the said Westminister Presbyterian Church intends with the permission of this Honorable Court, to sell its present church edifice and the lot, piece or parcel of ground on which the same is erected and turn over the proceeds 25 thereof to the religious corporation to be formed by the union of your petitioner with said Westminister Presbyterian Church to be the property of such cor- poration and thereby the revenues and pecuniary re- sources and consequent usefulness of your petitioner will be largely increased; that as your petitioner be- lieves, the religious needs of the locality in which your petitioner’s church, as well as said Westminister Pres- byterian Church is located, can be fully supplied by a single church which will be as efficient and useful as both your petitioner’s church and said Westminister Presbyterian Church are at present. IV. That the agreement made pursuant to the Second Section of Chap. 209 of the laws of 1875, is as follows : Tuts AGREEMENT made and entered into between The West Twenty-third Street Presbyterian Church of the City of New York of the first part, and the Westmin- ster Presbyterian Church, of the City of New York, of the second part, Witnesseth : Whereas each of the parties above named is a cor- poration duly incorporated under the laws of the State of New York, and Whereas the said corporations are desirous of unit- ing and consolidating under the name of the Westmin- ster Presbyterian Church of West Twenty-third Street, and Whereas the terms and conditions of this agreement are as hereinafter set forth, Now, therefore, in consideration of the premises and of the sum of One Dollar, the said coporations mutually agree to the following terms and conditions, to wit : I. Each of the parties hereto agrees to unite and consolidate with the other; such union and consolida- tion to be a corporation whose name shall be The Westminster Presbyterian Church of West Twenty- third Street. If. The Pastor of the West Twenty-third Street Presbyterian, to wit: Rev. R. F. Sample, D. D., and the Pastor of the Westminster Presbyterian Church, to wit: Rev. E. M. Deems, shall each of them be as Pastor 137 138 139 140 141 142 143 144 36 of the said Westminster Presbyterian Church of West Twenty-third Street until one year from the date of the entry of an order of the Supreme Court for the union and consolidation of the parties hereto under the name aforesaid, subject, however, to a continuance of them or either of them in said pastoral relation, such con- tinuance to be determined by a vote of the congregation in the same manner as in the éase of a call to a pastor. They shall be co-equal in authority as such pastors and shall mutually agree for a division and discharge of their duties as such pastors. The Rev. R. F. Sample, D. D., shall occupy the parsonage now belonging to said West Twenty-third Street Presbyterian Church, and shall receive a salary of Four Thousand Dollars. The Rev. E. M. Deems shall receive a salary of Three Thousand Dollars. Neither Pastor shall be required to remain the eutire year. Iif. The parties hereto, from and after the date of the entry of an order of the Supreme Court for the union and consolidation of the corporations aforesaid, shall occupy the Church edifice and its appurtenances now occupied by the West Twenty-third Street Presby- terian Church, as a place of public worship and for all ordinary Church purposes and from and after such union and consolidation, the parties hereto shall each have the same rights therein as now belong to the West Twenty-third Street Presbyterian Church. . IV. The church edifice and property now occupied by the Westminster Presbyterian Church shall be sold as soon as practicable after the entry of an order for such union and consolidation, as aforesaid, consistent with obtaining a just and fair price for the same, and all questions connected with the sale of said property shall be determined by a vote of the Trustees of the corporation to be formed by the union and _ consolida- tion of the parties hereto. The proceeds of such sale shall be the property of the corporation formed by such union and consolidation and such disposition shall be made of the same as the Trustees of said corporation may determine ; they shall also decide as to when and how and for what price said property shall be sold. V. Wuereas, there are three mortgages upon the oT property of the Westminster Presbyterian Church now 145 held by the Trustees of the Presbytery of New York amounting in all to the sum of Twenty-two thousand six hundred ($22,600.) Dollars, Ir Is AGREED that the corporation to be formed by the union and consolida- tion aforesaid shall execute and deliver to the Trustees of the Presbytery of New York a mortgage without bond upon the property now held by the West Twenty- third Street Presbyterian Church, upon the following terms and conditions, to wit : that said corporation to be formed as aforesaid shall well and truly pay unto the Trustees of the Presbytery of New York, their successors or assigns, the just and full sum of Twenty- _ two thousand six hundred Dollars, lawful money of the United States, on and after the severance, if ever, of the ecclesiastical connection of the parties of the first part with the Presbytery of New York, with inter- est from that date whenever it may occur, provided, however, that the Trustees of the Presbytery of New York shall first execute and deliver to the Westminster Presbyterian Church instruments in due form for the satisfaction and discharge of said three mortgages and procure said mortgages to be cancelled of record. VI. The officers of such corporation shall be two ministers, thirteen elders, nine trustees and seven dea- cons. (1) The names of the ministers are: Rev. RB. F. Sample, D. D. and Rev. E. M. Deems. (2) The names of the elders are : James H. Grovesteen, James M. Edgar, Franz G. Kindlund, Charles B. Dales, George R. Brown, J. Howard De Lamater, James L. Kemp, Richard Drummond, John H. Comfort, John D. Cluss, J. B. Lindsay, William E. Smith, George Ironsides. 146 147 148 149 150 15] 152 38 (3) The names of the trustees are : John Stanton, Franz G. Kindlund, John Stanley, Herbert H. Woodhouse, Henry Hedden, William C. Kemp, Peter W. McIndoe, Thomas O. Morrison, Richard Drummond. (4) The names of the deacons are: Frederick P. Wood, John Stanley, Edgar: P. Mott, Alexander Miller, William F. Smith, Thomas O. Morrison, William C. Kemp. VII. The day of the annual election shall be the first Wednesday of April, 1890, and on said day annu- ally thereafter. VIIL. All other matters connected with the tempo- ralities of said corporation to be formed as afcresaid, shall be regulated and managed by the Board of Trus- tees of such corporation and all matters connected with the spiritual] interests of said corporation shall be regulated by the ministers, elders and deacons of such corporation in the exercise of the duties ordinarily de- volving upon such officers. IX. It is agreed that a petition in the ordinary form shall be presented to the Supreme Court by each of the parties hereto in accordance with the Laws of the State of New York and that this agreement and the said petition shall be executed on behalf of each of said corporations by the President of the Board of Trustees of each of said Corporations, respectively, and the corporate seals of each of said corporations shall be affixed thereto. In witness whereof the said The West Twenty-third Street Presbyterian Church has caused these presents to be signed by the President of its Board of Trustees and 39 its corporate seal to be affixed thereto and the said, 158 The Westminster Presbyterian Church has also caused these presents to be signed by the President of its Board of Trustees and its corporate seal to be affixed hereto this third day of April, 1889. : THE West TWENTY-THIRD STREET PRESBYTERIAN CHURCH, (L. 8.) by F. Gusrar KInDLUND, President. Tuk WESTMINSTER PRESBYTERIAN CHURCH, 154 (L. 8.) by Ricoarp Drummonp, President. Strate, Ciry AND County or NEw York, ss: On this 3rd day of April, 1889, before me came Franz GustaF KInDLUND with whom I am personally ac- quainted, who being by me duly sworn deposes and says: That he resides in the City of New York ; is the President of the West Twenty-third Street Pres- 155 byterian Church, the corporation described in and which executed the foregoing instrument and of the Board of Trustees thereof; that the seal affixed to said instrument is the corporate seal of the said corpora- tion and was by him affixed thereto by the authority of said corporation and by the Board of Trustees thereof, and that he subscribed its and his name there- unto by like authority. Franz Gustar KINDLUND. Sworn to before me this 3rd 156 day of April, 1889. Epwin B. Roor, Notary Public (135), Dery 2 Go, Stats, Ciry AND County or New York, ss: On this 3rd day of April, 1889, before me came RicHarD Drummond with whom I am personally ac- quainted, who being [by me duly sworn deposes and 157 158 159 160 40 says: That he resides in the City of New York ; is the President of the Westminster Presbyterian Church, the corporation described in and which exe- cuted the foregoing instrument and of the Board of Trustees thereof ; that the seal affixed to said instru- ment is the corporate seal of said corporation and was by him affixed thereto by the authority of said cor- poration and the Board of Trustees thereof and that he subscribed its and his name thereunto by like authority. Ricnarp DrumMMonD. Sworn to before me this 3rd day of April, 1889. Epwin B. Root, Notary Public (135), New York Co. V. That your petitioner’s real property is as follows : All that certain lot or parcel of land with the build- ings and improvements thereon erected, situate, lying and being in the City of New York and bounded and described, as follows: viz,— Beginning at a point on the southerly side of West 23rd Street distant One hundred feet westerly from the southwesterly corner of . Seventh Avenue and said West 23rd Street, running thence southwardly parallel with Seventh Avenue one hundred and eighteen feet and nine inches ; thence westwardly parallel with West 25rd Street one hundred feet ; thence northwardly again parallel with Seventh Avenue one hundred and eighteen feet and nine inches to the southerly side of West 23rd Street and thence eastwardly along said southerly side of West 23rd Street one hundred feet to the point or place of begin- ning. VI. That your petitioner’s personal property is as follows : One large Organ, One Cabinet Organ, One Piano, Mats, Carpets, Chairs, Settees, Stoves and Heaters 41 and other furnishings in and for the Church buildings on the premises above described. Hymn and Library Books. VII. That all your petitioner’s debts and liabilities are as follows: 1—Mortgage covering the above premises beld by Nursery & Child’s Hospital, re- corded Liber 1682 of Mortgages at page SL ELA oo, Win ee DEB Sa, atop ReaeR ie a $13,000. Dees DIS CbOs MNOS se eee Cee 3,500. 3—Bills payable Velulaye Bros. Coal__----- $79.25 Gorton Bros. repairs------ 15. Abbotts Sons Hardware_-_ 5. Scrafford repairs_=._..----- 15.03 Rosevelt car of Organ.._-- 18.75 Pastors sélary.<—2%).o62-- 333.33 — 366.36 VIII. That the amount of your petitioner’s annual income is as follows: Five thousand three hundred and seventy five 80/100 Dollars. IX. That the sources of your petitioner’s income are as follows : Pew rents, envelope contributions, plate collections and special contributions. X. That your petitioner is connected with the Presbytery of New York and is subject to its advice and control; that it has submitted the question as to the advisability of said union and consolidation to the judgment of the Presbytery of New York and the re- sult has been that the said Presbytery has adopted a resolution of which the following is a copy : “After hearing statements from the Rey. Dr. Sample and Rey. Mr. Deems pastors, and the commissioners, respectively, of the West Twenty-third Street Pres- byterian Church and of the Westminster Presbyterian 161 162 163 164 165 166 167 168 42 Church, and listening to the proposed plan for a union and consolidation of said Churches, it was RESOLVED that in the judgment of the Presbytery, the plan for such union and consolidation is wise and judicious and the same is hereby approved.” XI. That a meeting of your petitioner’s corporation to consider and act upon the proposed union and con- solidation and the agreement and petition therefor, was called by a notice given in the same manner and for the same length of time as is provided for notices of election of trustees in Section 3 of Chap. 60 of the Laws of 1813, as amended by Chap. 209 of the Laws of 1875, and a copy of said notice is as follows : “ Notice is hereby given that there will be a meeting of the West Twenty-third Street Presbyterian Church on Wednesday, the third day of April, 1889, at 8 o'clock P. M. for the purpose of determining whether there shall be a union of the Westminster Presbyterian Church with the West Twenty-third Street Presby- terian Church and to consider and act upon the pro- posed union and consolidation and the agreement and petition therefor.” That the same was read from the pulpit of your petitioners church on the 17th, 24th and 31st days of March, 1889. XIL. That the foregoing petition and agreement and the proposed union and consolidation were submitted to a vote of the persons entitled to vote at an election of trustees of your petiticner’s corporation and the said proposed union and consolidation and the said agreement and petition received the approval of three- fourths of the persons entitled to vote at an election of trustees of your petitioner’s corporation and the fol- lowing resolution was unanimously adopted : “ RESOLVED that the proposed union and consolida- tion of the West Twenty-third Street Presbyterian Church with the Westminster Presbyterian Church and the agreement and petition therefor, be and the same hereby are approved, and the President of the Board 43 of Trustees is hereby authorized to execute the said agreement and petition on behalf of the West Twenty- third Street Church, and to affix the corporate seal thereto and to cause said petition to be presented to the Supreme Court and application to be made thereto for such order in the premises as may be proper.” WHEREFORE your petitioner prays that an order may be granted for the union and consolidation of your petitioner with the Westminster Presbyterian Church and that the same may determine all the terms, con- ditions and provisions thereof. THe West TWENTY-THIRD STREET PRESBYTERIAN CHURCH. By (Corporate seal) I. Gustar KInDLUND, President. THERON G. STRONG, Attorney for Petitioner, 45 William St., New York City. State, Crry AND County or New YORK, 8s: F. Gusrar KinpLunp, being duly sworn, says: that he is the President of the West Twenty-third Street Presbyterian church, the petitioner above named and has been such for about one year passed ; that he has read the foregoing petition and knows the knows the contents thereof and that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true. He further says that the reason this verification is not made by said petitioner is that it is a domestic corporation, that he is an officer of the same, to wit: the President, and that the sources of his information and the grounds of his belief are the parts which he has taken in the meetings of said corporation and in the transactious mentioned in said petition and infor- 169 170 171 172 dt 173 mation communicated to him by the officers, attorneys and agents of said corporation, and his confidence from personal acquaintance with such officers, attorneys and agents in the accuracy of the information imparted to him by them. He further says that the seal affixed to said petition is the corporate seal of said petitioner and was by him affixed to said petition by authority of said corporation and the trustees thereof. IF. Gustar KINDLUND. 174 Sworn to before me this 16th day of April, 1889. Pate L. RUNKEL, Notary Public (71), Nee Ye Co: SUPREME COURT, City AND County oF New York. 175 In THE MATTER The Application of THe Twenty- THIRD STREET PRESBYTERIAN CHURCH OF THE City oF NEw York and THrE WESTMINSTER PRESBY- TERIAN CHURCH OF THE CITY OF New York for an order authoriz- ing said corporations to unite and consolidate under the name of the Westminster Presbyterian Church of West Twenty-third Street. | 176 ’ The petition of the Westminster Presbyterian Church respectfully shows : I. That your petitioner is a religious corporation duly inccrporated under the Act entitled “ An act for 45 the Incorporation of Religious Societies,’ passed 177 April 5, 1813, and the acts amendatory thereof. II. That your petitioner is desirous of uniting and consolidating with the West I'wenty-third Street Pres- byterian Church of the City of New York and an ar- rangement has been made with said West Twenty- third Street Presbyterian Church for a union and con- solidation with your petitioner subject to the consent of this Honorable Court. III. That the reasons for such union and consolida- tion are as follows : That your petitioner is the owner of a Church edifice with the lots on which the same stands situated on the north side of Twenty-second Street one hundred and eighty-seven feet and six inches east of the northeast- erly corner of Seventh Avenue and Twenty-second Street and it is only about seven hundred feet distant from the West Twenty-third Street Presbyterian - Church ; that by reason of the proximity of the two Churches, your petitioners believe that.the usefulness of each is impaired and that one Church in that locality is all that is required : that by reason of changes tak- ing place in its immediate vicinity and the tendency of residents of that portion of the City to move up town, the congregation worshipping in your petitioner’s church has been gradually diminished and its income correspondingly reduced, so that, at the present time the income derived by your petitioner is not sufficient to meet the expenses of caring for its property and con- ducting public worship and its usual weekly meetings and there is annually a considerable deficit of expenses which your petitioners are unable to meet ; that your petitioner’s church edifice is very much out of repair and requires an immediate expenditure of a consider- able sum of money to put it in proper condition and in order to do so, it will be necessary to create a debt against its property ; that your petitioner’s income is not derived from pew rents for the reason that a system of free pews is in operation, and its only source of in- 178 179 180 181 182 183 184 46 come is as aforesaid, from voluntary subscriptions taken under what is known as the “ Envelope system ” ; that by reason of the diminishing number of stated worshippers and the large expenses attendant upon maintaining a pastorage and the ordinary public wor- ship, the only possible consequences of its continuance as a church with the ordinary church services will be to accumulate a constantly increasing indebtedness against its property ; that your petitioner has made arrangements subject to the approval of this Honorable Court with the West Twenty-third Street Presbyterian Church for a union and consolidation, as aforesaid upon the understanding that your petitioners and the congregation worshipping in the Westminster Presby- terian Church shall be accommodated in the West Twenty-third Street Presbyterian Church and shall be consolidated and united therewith ; that your petition- ers therefore believe it is desirable to sell its present church property and to use the proceeds in connection with the corporation formed by the union and consoli- dation of the West Twenty-third Street Presbyterian Church with your petitioner, as the property of such corporation and thereby the said corporation to be formed by said union and consolidation will be placed upon a satisfactory pecuniary basis and the religious needs of the locality in which your petitioner’s church, as well as said West Twenty-third Street Presbyterian Church is situated, will be fully supplied. IV. That the agreement made pursuant to the second Section of Chapter 209 of the laws of 1875, is as fol- lows : THis AGREEMENT made and entered into between The West Twenty-third Street Presbyterian Church of the City of New York of the first part, and the Westmin- ster Presbyterian Church, of the City of New York, of the second part, Witnesseth : Whereas each of the parties above named is a cor- poration duly incorporated under the laws of the State of New York, and AT Whereas the said corporations are desirous of unit- ing and consolidating under the name of the Westmin- ster Presbyterian Church of West Twenty-third Street, and Whereas the terms and conditions of this agreement are as hereinafter set forth, Now, therefore, in consideration of the premises and of the sum of One Dollar, the said corporations mu- tually agree to the following terms and conditions, to wit : I. Each of the parties hereto azrees to unite and consolidate with the other; such union and consolida- tion to be a corporation whose name shall be The Westminster Presbyterian Church of West Twenty- third Street. II. The Pastor of the West Twenty-third Street Presbyterian, to wit: Rev. R. F. Sample, D. D., and the Pastor of the Westminster Presbyterian Church, to wit: Rev. KE. M. Deems, shall each of them be a Pastor of the said Westminster Presbyterian Church of West Twenty-third Street until one year from the date of the entry of an order of the Supreme Court for the union and consolidation of the parties hereto under the name aforesaid, subject, however, to a continuance of them or either of them in said pastoral relation, such con- tinuance to be determined by a vote of the congregation in the same manner as in the case of a call to a pastor. They shall be co-equal in authority as such pastors and shall mutually agree for a division and discharge of their duties as such pastors. The Rev. R. F. Sample, D. D., shall occupy the parsonage now belonging to said West Twenty-third Street Presbyterian Church, and shall receive a salary of Four Thousand Dollars. ‘he Rev. EH. M. Deems shall receive a salary of Three Thousand Dollars. Neither Pastor snall be required to remain the entire year. III. The parties hereto, from and after the date of the entry of an order of the Supreme Court for the union and consolidation of the corporations aforesaid, shall occupy the Church edifice and its appurtenances now occupied by the West Twenty-third Street Presby- 185 186 187 188 189 190 19] 192 48 terian Church, as a place of public worship and for all ordinary Church purposes and from and after such union and consolidation, the parties hereto shall each have the same rights therein as now belong to the West Twenty-third Street Presbyterian Church. IV. The church edifice and property now occupied by the Westminster Presbyterian Church shall be sold as soon as practicable after the entry of an order for such union and consolidation, as aforesaid, consistent with obtaining a just and fair price for the same, and all questions connected with the sale of said property shall be determined by a vote of the Trustees of the corporation to be formed by the union and consolida- tion of the parties hereto. The proceeds of such sale shall be the property of the corporation formed by such union and consolidation and such disposition shall be made of the same as the Trustees of said corporation may determine; they shall also decide as to when and how and for what price said property shall be sold. V. Wuernas, there are three mortgages upon the property of the Westminster Presbyterian Church now held by the Trustees of the Presbytery of New York amounting in all to the sum of Twenty-two thousand six hundred ($22,600.) Dollars, Ir Is aGrEED that the corporation to be formed by the union and consolida- tion aforesaid shall execute and deliver to the Trustees of the Presbytery of New York a mortgage without bond upon the property now held by the West Twenty- third Street Presbyterian Church, upon the following terms and conditions, to wit : that said corporation to be formed as aforesaid shall well and truly pay unto the Trustees of the Presbytery of New York, their successors or assigns, the just and full sum of Twenty- two thousand six hundred Dollars, lawful money of the United States, on and after the severance, if ever, of the ecclesiastical connection of the parties of the first part with the Presbytery of New York, with inter- est from that date whenever it may occur, provided, however, that the Trustees of the Presbytery of New York shall first execute and deliver to the Westminster 49 Presbyterian Church instruments in due form for the 193 satisfaction and discharge of said three mortgages and procure said mortgages to be eancelled of record. VI. The officers of such corporation shall be two ministers, thirteen elders, nine trustees and seven dea- cons. (1) The names of the ministers are: Rev. R. F. Sample, D. D, and Rey. E. M. Deems. (2) The names of the elders are : James H. Grovesteen, James M. Edgar, 194 Franz G. Kindlund, Charles B. Dale, George BR. Brown, J. Howard De Lamater, James L. Kemp, Richard Drummond, John H. Comfort, John D. Cluss, J. B. Lindsay, William E. Smith, 195 George Ironsides. (3) The names of the trustees are ; John Stanton, Franz Kindlund, John Stanley, Herbert H. Woodhouse, Henry Hedden, William C. Kemp, Peter W. McIndoe, ° Thomas O. Morrison, 196 Richard Drummond, (4) The names of the deacons are : Frederick P. Wood, John Stanley, ‘Edgar P. Mott, Alexander Millev, William F. Smith, Thomas O. Morrison, William C. Kemp. 50 197. +VIL. The day of the annual election shall be the first Wednesday of April, 1890, and on said day annu- ally thereafter. VILL. All other matters connected with the tempo- ralities of said corporation to be formed as aforesaid, shall be regulated and managed by the Board of Trus- tees of such corporation and all matters connected with the spiritual interests of said corporation shall be regulated by the ministers, elders and deacons of such corporation in the exercise of the duties ordinarily de- 198 volving upon such officers. IX. It is agreed that a petition in the ordinary form shall be presented to the Supreme Court by each of the parties hereto in accordance with the Laws of the State of New York and that this agreement and the said petition shall be executed on behalf of each of said corporations by the President of the Board of Trustees of each of said Corporations, respectively, and the corporate seals of each of said corporations shall be affixed thereto. 199 In witness whereof the said The West Twenty-third Street Presbyterian Church has caused these presents to be signed by the President of its Board of Trustees and its corporate seal to be affixed hereto and the said, The Westminster Presbyterian Church has also caused these presents to be signed by the President of its Board of Trustees and its corporate seal to be affixed hereto this third day of April, 1889. Tae WESTMINSTER PRESBYTERIAN CHURCH, 200 (L. 8.) by RicHarp DroumMonpn, President. THe Wesr TWENTY-THIRD. STREET PRESBYTERIAN CHURCH, (Ue) by F. Gustar KinpLunp, © President. | SraTge, Ciry aND County OF New York, ss: On this 3rd day of April, 1889, before me came RicHarD Drummonp with whom I am personally ac- 51 quainted, who being by me duly sworn deposes and 201 says: That he resides in the City of New York; is the President of the Westminster Presbyterian Church, the corporation described in and which exe- cuted the foregoing instrument and of the Board of Trustees thereof; that the seal affixed to said instru- ment is the corporate seal of said corporation and was by him affixed thereto by the authority of said cor- poration and the Board of Trustees thereof and that be subscribed its and his name thereunto by like authority. 202 RicHarpD DRUMMOND. Sworn to before me this 3rd day of April, 1889. Epwin B. Roor, Notary Public (135), New York Co. StaTe, Criry AND County oF NEw York, ss: On this 3rd day of April, 1889, before me came FRANZ 203 GusraF KinpLunD with whom I am personally ac- quainted, who being by me duly sworn, deposes and says: That he resides in the City of New York ; is the President of the West Twenty-third Street Pres- byterian Church, the corporation described in and which executed the foregoing instrument and of the Board of Trustees thereof; that the seal affixed to said instrument is the corporate seal of the said corpora- tion and was by him affixed thereto by the authority of said corporation and by the Board of Trustees 204 thereof, and that he subscribed its and his name there- unto by like authority. Franz Gustar KINDLUND. Sworn to before me this 3rd day of April, 1889. Eipwin B. Root, Notary Public (135), BN Von GO, 205 206 207 208 52 V. That your petitioner’s real property is as follows : All those certain lots, pieces or parcels of ground with the brick building thereon situated, lying and be- ing in the Sixteenth (late Twelfth) Ward of the City of New York and which taken together are described as follows : Beginning at a point on the ncrtherly side of Twenty- second Street distant eastwardly from the LHasterly line of Seventh Av. one hundred and eighty seven feet and six inches running thence easterly along the said northerly line of T'wenty-second Street sixty-seven feet and six inches, thence northerly parallel with Seventh Avenue ninety eight feet and nine inches to the centre line of the block between Twenty-second and Twenty- third ; thence westerly along said centre line parallel with Twenty-second Street sixty seven feet and six inches thence southwardly and parallel with Seventh Av. ninety eight feet and nine inches to the northerly side of Twenty-second Street at the point of Begin- ning. VI. That your petitioner’s personal property is as follows : Organ, cabinet organ, pulpit, pews, cushions, settees chairs, tables, furnaces, stoves, gas fixtures and globes, carpets, mats and mattings, pew foot rests and other furnishings in and for the church buildings on the premises above described ; hymn books, prayer books and Sunday School Library books. VII. That all your petitioners debts and abilities are as follows : Robert Henderson 222329. 50 see ee eee ae $152.46 Styles*and: Gash. eves. 322 Sas SE ee eo ee soe ree Consolidated; Gas:Co, 22422 So ee 23.12 M) A bbotts:Sons #2522 ee ee 7.53 Thomas: Rusko ot sot Lee eee eee 12.60 TOF Morison 2 52si ee ee 4.64 Pe Woalahtt ces ee ee ees 6 Spita:&Henschilisc. pt ee ee ee 1.30 (haem lity a oth ee SaaS eo 5. 209 NEFPAw IO tiaeies foes a sae Ue Se Ae - 6.02 PRUVORMESIIC Cee Maes St, See sy Ce eS So ais 2. SalaryOroauishee. ge sete tL See Eta S 350. Maem L ASLO. Seiten RS Pee ee etn 229.17 PamCLOVIntencaAbOtbee 7. 2) She 80. MaAbbotta 222 _ 1-05 ( then bills were re- 1.05 HiMeyers2e-. -- .15 < ceipted but not paid 75 DaNibloe sn 5. ) by Treasurer--_-_--- 5. ANGE eee gS ed ee eet eae $913.89 210 Mortgage on its above described real estate dated November 19, 1853, to the Common- wealth Fire Insurance Company recorded Liber 457 of Mortgages at page 94__.__-- $13,000. Mortgage on its above described real estate dated January 10, 1854, to John Steward, John H. Neilley and James Glasford, re- corded in Liber 458 of Mortgage at page CAPA tn ca ly fa et ap oe a econ Reo egh Pede ep O aa 6,000. 914 Mortgage on its above described real estate dated May 28, 1874 to the Trustees of the Presbytery of New York recorded Liber | 1191 of Mortgages, page 164___-____---- 3,600. VILL. That the amount of your petitioner’s income is as follows: Three thousand six hundred and fifty six Dollars and thirty two cents. tN — Ww IX. That the sources of your petitioners income are as follows : Envelope contributions, basket contributions and special contributions. X. That your petitioner is connected with the Presbytery of New York andis subject to its advice and control; that it has submitted the question as to the advisability of said union and consolidation to the judgment of the Presbytery of New York and the result 213 214 216 54 has been that the said Presbytery has adopted a reso- lution of which the following is a copy: ‘“‘ After hearing statements from the Rev. Dr. Sample and Rev. Mr. Deems, Pastors, and the commissioners respectively of the West Twenty-third Street Presby- terian Church and of the Westminster Presbyterian Church and listening to the proposed plan for a union and consolidation of said churches, it was Resolved that the judgment of the Presbytery, the plan for such union and consolidation is wise and judi- cious and the same is hereby approved.” XI. That a meeting of your petitioner’s corporation to consider and act upon the proposed union and con- solidation and the agreement and petition therefor, was called by a notice given in the same manner and for the same length of time as is provided for notices of election of trustees in Section 3 of Chap. 60 of the Laws of 1813, as amended by Chap. 209 of the Laws of 1875 and a copy of said notice is as follows : “ Notice is hereby given that there will be a meeting of the Westminster Presbyterian Church on Wednes- day the third day of April, 1889, at 8 o’clock P. M. for the purpose of determining whether there will be a union of the West Twenty-third Street Presbyterian Church with the Westminster Presbyterian Church and to consider and act upon the proposed union and consolidation and the agreement and petition therefor.” That the same was read from the pulpit of your petitioners church on the 17th, 24th and 31st days of March 1889. XII. That the foregoing petition and agreement and the proposed union and consolidation were submitted to a vote of the persons entitled to a vote at an elec- tion of the trustees of your petitioners corporation and the said proposed union and consolidation and the said agreement and petition received the approval of three-fourths of the persons entitled to vote at an elec- tion of trustees of your petitioners corporation and the following resolution was unanimously adopted : 55 “ fesolved that the proposed union and consolidation of the Westminster Presbyterian Church with the West Twenty-third Street Presbyterian Church and the agreement and petition therefor, be and the same hereby are approved and the President of the Board of Trustees is hereby authorized to execute the said agreement and petition on behalf of the Westminster Presbyterian Church and to affix the corporate seal thereto and to cause said petition to be presented to the Supreme Court and application to be made thereto for such order in the premises as may be proper.” WHEREFORE your petitioner prays that an order may be granted for the union and consolidation of your petitioner with the West Twenty-third Street Preshy- terian Church and that the same may determine all the terms, conditions and provisions thereof. THE WESTMINSTER PRESBYTERIAN CHURCH, By [Corporate Seal. | RicHarD DrumMonp, President. Tueron G. SrRona, Attorney for Petitioner, 45 William St., New 5 York City. Srate, Crry AND County oF New York, ss: Ricnarp DrumMonp being duly sworn, says: that he is the President of the Westminster Presbyterian Church, the petitioner above named and has been for about 10 years passed; that he has read the fore- going petition and knows the contents thereof and that the same is true of his own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. | He further says that the reason this verification is not made by said petitioner is that it is a domestic 217 218 219 220 221 222 223 224 56 corporation ; that he is an officer of the same, to wit: the President, and that the sources of his information and the grounds of his belief are the parts which he has taken in the meetings of said corporation and in the transactions mentioned in said petition and infor- mation communicated to him by the officers, attorneys and agents of said corporation, and his confidence from personal acquaintance with such officers, attorneys and agents in the accuracy of the information imparted to him by them. He further says that the seal affixed to said petition is the corporate seal of said petitioner and was by him affixed to said petition by authority of said corpora- tion and the trustees thereof. RicHarD DRrumMonp. Sworn to before me this 16th day of April, 1889. Pururp L. RuNKEL, Notary Public (71), N. Y. Co. 57 SUPREME COURT, County oF New York. ] Watrter FInpuay, ET AL., suing on | behalf of themselves and all other | members of the Westminster Pres- | byterian Church of West Twenty- third Street, Plaintiffs, AGAINST | JOHN Lioyp LEs, ET AL., Defendants. Strate oF New York, Bs 4 City and County of New York, § ~~ Frep E. SHEARER being first duly sworn, says he is Stated Clerk of the Presbytery of New York and has been such Stated Clerk since on or about the Ist day of May 1902 and as such Stated Clerk has in his cus- tody and control the records of said presbytery. That the records in his possession show that the said pres- bytery was constituted on the 21st day of June, 1870, and included within its membership all presbyterian churches belonging to the Presbyterian Church in the United States of America within Manhattan Island and that the said Presbytery of New York was the legal successor to the second, third and fourth presbyteries of New York, and the former Presbytery of New York; said Presbytery of New York and said second, third and fourth presbyteries having theretofore existed within said territory or portions of the same and rep- resenting divisions of the Presbyterian Church which were united into and formed one church known as the Presbyterian Church of the United States of America in the said year 1870. 226 227 5 2 28 229 230 231 232 58 That it is affiant’s duty to prepare the records and enroll the same of the said Presbytery of New York, and that the record of proceedings of said presbytery as set forth in the complaint in this action is a true and correct statement of the proceedings of said pres- bytery and the said complaint contains true and cor- rect copies of the records of said presbytery ; that all of the letters and communications set forth in the re- port of the action of said presbytery addressed to affiant are in the possession of affiant as the clerk of said presbytery and have been received by affiant and that the signatures attached thereto are the genuine signatures of the parties purporting to have signed the same, said signatures being known to this affiant. Affiant further says that the book attached to the original complaint herein entitled “Government, Dis- cipline & Worship of the Presbyterian Church in the U.S. A.’, is an official publication of the Presbyterian Board of Publication and Sabbath School Work, the same being the medium of publication of thé Presby- terian Church of the United States of America and the said volume containing the Form of Government aud Book of Disciplive Directory for Worship and Acts of the general assembly is final authority in the judica- tories of the Presbyterian Church in the United States of America. Affiant says further that as such Stated Clerk he has knowledge of the proceedings of the synod of New York, which said synod of New York embraces ‘vithin its jurisdiction and control all the churches of the presbyterian church of the United States of America within the State of New York and New England and that said synod has taken no action respecting the transfer of the Westminster Presbyterian Church cf West Twenty-Third Street from the jurisdiction and control of the Presbytery of New York and looking to the placing of said church under the jurisdicton and control of any other presbytery within the boundaries of said synod. Affiant says that Rule 20 of the stand- ing rules of the presbytery of New York is as follows: “20. It shall be deemed irregular for any minister or 59 licentiate to preach statedly in any vacant church under the care of the presbytery, until he has obtained the approbation of the presbytery or sanction of the Moderator’s Advisory Council.” That since the action of said presbytery declaring vacant the pulpit of the Westminster Presbyterian Church of West Twenty-Tbird Street, no action has been taken by said presbytery respecting the occupa- tion of the said pulpit regularly under said Rule 20. A ffiant says further that he has examined in the Clerk’s Office of the County of New York the proceedings re- lating to the organization of the said Westminster Presbyterian Church of West Twenty-Third Street and that Exhibit “ A” attached to the bill of complaint herein is a copy of the said proceedings found therein. FREDERICK EK, SHEARER. Sworn to before me this 262 day of March, 1906. § B. W. J. Fox, [ SEAL. | Notary Public, Kings Co., NY. Certificate filed in New York County. [29527 | 233 234 236 are one es € Pe =: oe: UPON APPLICATION FOR PRE- - LIMINARY INJUNCTION. Facts. _ mentary record. % On and prior to the 31st day of January, 1906, the pe Wedtminster Presbyterian Church of West Twenty- Third Street in the a of "New York existed as a case at bar. This Simone corporation was ned upon the 16th of April, 1889, by the consoli- n of two pre-existing churches one known as the « Westminster Presbyterian Church” and the other as ; ie est Twenty- Third Street Presbyterian Chureh i. ») of New York isa part of the Presbyterian Church in the United States of America, and under the form of Government and Discipline of the Presbyterian Church is the judicatory in the Presbyterian Church of the United States of America having supervision and control over individual churches within its bounda- ries; over the presbytery is the synod, and over the synod is the general assembly. (See as to the status of the West Twenty-Third Street Presbyterian Church: and the Westminster Presbyterian Church, the peti- tions of these churches respectively in Exhibit “ A ” to the complaint. As to their subordination to the presbytery, see paragraph 10 of petition of each of said churches, Exhibit A and Form of Government Chapter X.) On the 31st of January, 1906, at a congregational meeting of the members of Westminster Presbyterian Church of West Twenty-Third Street, resolutions were passed severing the connection of the said church from the Presbytery of New York and announcing their in- tention to be independent of that body, requesting Rev. John Lloyd Lee, the pastor, to join in the act of severance and withdrawal and authorizing the clerk to transmit a draft of those resolutions to the Stated Clerk of the New York Presbytery (Complaint, p. 10). These resolutions were duly transmitted to Presbytery over the signature of the clerk of the meeting and at the same time the pastor, defendant Lee, in a separate communication to the Stated Clerk of Presbytery com- municated the fact that he had renounced the jurisdic- tion of the church by becoming independent and called attention to Section 53 of the Book of Discipline and claiming his right under that section (Complaint, pp. 11,12). That section provides : “Tf a minister not otherwise chargeable with offense, renounces the jurisdiction of this Church by abandon- ing.the ministry or becomizg independent, or joining another denoraination not deemed ‘heretical without a regular dismissal, the Presbytery shall take no other action than to record the fact and erase his name from the roll.” (Book of Discipline, p a 5) Upon receipt of the foregoing communication the matter was regularly presented to Presbytery and that body took action first with respect to defendant Lee, by making record of the fact of his renunciation of the jurisdiction of the Presbyterian Church in the United States of America and the erasing of his name from the roll of the Presbytery, and it also declared the effect of that to be that the pastoral relation between the defend- ant Lee and the Westminster Presbyterian Church of West Twenty-third Street had ceased to exist, and in accordance with the uniform practice, in such cases, and paragraph four of Chapter IX of the “ Form of Gov- ernment ”, the Presbytery appointed as moderator of the Session of the Westminster Presbyterian Church of West Twenty-third Street, Rev. George Alexander, D. D., one of its members (Complaint, pp. 12-15). The explanation of this action is simple, and is that up to that time Presbytery had no knowl- edge of any action on the part of the session of the Westminster Presbyterian Church of West Twenty- third Street, repudiating the jurisdiction of Presbytery. Thereupon Rey. George Alexander addressed a com- munication to the Clerk of the Session advising him of the appointment by Presbytery of himself as moderator of the Session, and asking the Clerk of the Session to consult with the other mem- bers of the session and ascertainwhen and where it would be agreeable to the Session to have the Moderator call a meeting (Complaint, p. 16). In answer to this said Alexander receiveda communication over the signature of the Clerk, and stated to be by the in- struction of the Session, to the effect that the Session fully concurred in the action of the Church at the meeting on January 31st, and joined in the withdrawal from the jurisdiction of Presbytery, further repudiat- ing any right or authority on the part of the Presby- tery, or of any one representing Presbytery to exercise any jurisdiction whatsoever in the affairs of the Church or of the Session (Complaint, pp. 16,17). This was duly reported to Presbytery, and thereupon the Pres- bytery in view of the proceedings, First, of the con- 4 gregation ; Second, on the part of tue Pastor; and Third of the acticn of Presbytery with respect thereto; and Fourth of the Session, all of which were recited and fai y set forth, proceeded in the exercise of its powers as vested in it by the Form of Government (particularly Section 8, of Chapter 10), to pass resolutions to the effect that in view of their refusal to acknowledge the juris- diction of Presbytery, the members of the Session should be deposed from their offices as ruling elders in the Presbyterian Church, and forbidden to exercise any of the duties of said office in said Westminster Pres- byterian Church of West Twenty-third Street, and also declaring the effect of their conduct to be that inasmuch as they had renounced the jurisdiction of the Presbyterian Church in the United States of: America they had thereby removed themselves from its member- ship, and the Presbytery recognized the fact, and or- dered their names to be erased from the roll of mem- bership of the Church (Complaint, pp. 17-25). Prior to the Meeting of January 31st, 1906, and in April, 1905, the congregation of the Westminster Pres- byterian Church of West Twenty-third Street had taken action under the Statutes of New York, by which the Pastor and Members of the Session became the Trus- tees of the Church. The incumbency of the oftice of. Trustee thereafter depended under the Statute of New York to which reference will be hereafter made, first, to the fact of the party’s being a member of the Church, and, second, upon the fact of his being a member of the Session. The plaintiffs are members of Westminster Presbyterian Church of West Twenty-third Street, who have not participated in the movement of secession from the Presbytery, and from the Presbyterian Church in the United States of America, and inasmuch as all the Trustees participated in that movement as shown by the communications to and from the session, these members who have not participated in such secession bring this suit on behalf of themselves and all other members of the Westminster Pres- byterian Church of West Twenty-third Street, to enjoin the further use by the defendants claiming to be trus- 5 tees and pastor of that Church of the property be- longing to that Church, It is not claimed by the plaintiffs that the defendants and other members of that Church may not determine for themselves their ecclesiastical relations. It is claimed, however, that the necessary consequence of the withdrawal from the jurisdiction and control of Presbytery, or withdrawal from the Presbyterian Church in the United States of America, is that such members of the church as remain are entitled to the possession of the property under the advice and control of Presbytery for the purpose of re-organizing the Church. The Presbytery of New York, in the exercise of its power of supervision, duly appointed a committee to call a meeting of such members for the election of ruling elders, and to advise under the Form of Government and Book of Discipline, such action as would be proper in the premises (Complaint p. 25). An examination of the Statutes of New York relating to the powers of Trus- tees and of the decisions which have been made upon the Statutes as they now exist, and such as control this consolidated religious corporation of 1889 in the Courts of New York, and the current of authority in other States leave, as we think, no doubt, as to the rights of the plaintiffs in the premises. I. Statutes. The Law of 1813 (Chapter 60), entitled “An Act to provide for the incorporation of religions societies ” was the general law in the State of New York upon the subject until the general revision of the laws relating to religious corporations in the year 1895. This act was materially modified in particulars relating to the case before the court, by Chapter 79 of the Laws of 1875. This provided in section 4: “The trustees of any church, Wi Nie or relig- ious society incorporated under section 3 of the above- 6 mentioned act, shall administer the temporalities thereof and hold and apply the estate and property belonging thereto and the revenues of the same for the benefit of such corporation, according to the discipline, rules, and usages of the denomination to which the church members of the corporation belong, and it shall not be lawful for the trustees to divert such estate, property, or revenue to another purpose, except towards the support and maintenance of any religious, benevolent or other institution connected with such church, cougregation or religious society.” By Chapter 176 of the laws of 1876, section 1, of said chapter repeats the same requirements, extending the language to include the rector, wardens, vestrymen, consistory, or session of any church. This remained the law until the enactment of Chapter 723 of the laws of 1895, which is entitled ‘“‘ An Act in relation to relig- ious corporations constituted under Chapter 42 of the General Laws,” which revised the laws relating to re- ligious corporations, and repealed the law of 1813, en- titled ‘‘ An Act to provide for the incerporation of re- ligious societies,’ and the amendatory and supple- mentary acts, running down to 1894. And in section 5 of this act there was reversion again to the language of the Act of 1875. It provided : “The trustees of every religious corporation shall have the custody aud coutrol of the temporalities and property belonging to the corporation and of the revenues therefrom and shall administer the same in accordance with the discipline, rules, and usages of the religious denomination or ecclesiastical gov- erning body, if any, with which the corporation is connected, and with the provisions of law relating thereto for the support and maintenance of the cor- poration or of some religious, charitable, benevolent, or educational object conducted by it, or in connec- tion with it, or with such denomination, and they shall not use such property or revenues for any other purpose or divert the same from such uses. By-laws duly. adopted at the meeting of the members of the corporation shall control the action of its trustees ”. It is to be noted that this, while generally following the language of the Act of 1875, emphasizes the con- er nection of the corporation with the ecclesiastical governing body of the religious denomination with which it may be connected, and limits the use of the property to some religious, charitable, benevolent, or educational object connected with the corporation, or with the denomination. The first paragraph of section 15 of the same Act still further emphasizes the recognition by the law of such connection with the denomination in the matter of property. It provides : * Property of extinct churches. Such incor- porated governing body may decide that a church, parish or society in connection with it or over which it has ecclesiastical jurisdiction, has become extinct, if it has failed for two consecutive years next prior thereto to maintain religious services according to the dis- cipline, customs, and usages of, such governing body, or has had less than thirteen resident attending mem- bers paying annual pew rent or making annual con- tribution towards its support, and may take posses- sion of the temporalities and property belonging to such church, parish, or religious society and manage ; or may, in pursuance of the provisions of law relat- ing to the disposition of real property by religious corporations, sell or dispose of the same and apply the proceeds thereof to any of the purposes to which the property of such governing religious body is de- voted, and it shall not divert such property to any other object ”. By Chapter 97 of the Laws of 1902, entitled “ An Act to amend the religious corporations law relating to Presbyterian Churches,” the provisions relating to trustees are continued. By paragraph 3, Section 46, of that Act, it is provided: “The trustees of an incorporated church to which this article is applicable, shall have the custody and control of all the temporalities and property belong- ing to the corporation and of the revenues from such property, and shall administer the same in accordance with the discipline, rules, usages, laws and book of government of the religious denomination or ecclesi- astical governing body with which the church is con- nected, and with the provisions of law relating thereto, for the support and maintenance of the church cor- poration or providing the members thereof at a cor- 8 porate meeting thereof shall so authorize, of some re- ligious, charitable, benevolent or educational object, conducted by such church, or connected with it, or with the denomination with which it is connected, and they shall not use such property or revenue for any other purpose or divert the same from such use”. The language of the statutes of New York, there- fore, since 1875, with respect to the power of trustees of religious corporations over the property in their custody distinctly recognizes the rights of the denom- ination. By Chapter 97, Section 41, of the Laws of 1902, it is provided that : “1. If the trustees of an incorporated Presbyterian Church, in connection with the Presbyterian Church in the United States of America, shall at any time be elective trustees and not trustees by virtue of being the spiritual officers, the church may, at an annual cor- porate meeting, if notice thereof be given with the notice of such meeting, determine that the deacons thereof, or the pastors, ruling elders and the deacons thereof, or the pastor and the ruling elders thereof, shall thereafter constitute the trustees thereof, and thereupon the presiding officer of such meeting and at least two: other persons present thereat, shall sign, acknowledge, and cause to be filed and recorded, a cer- tificate stating the fact of such determination, the names of the officers determined upon to be the ex officio trustees thereof, and thereupon the terms of oftice of such elective trustees shall cease and the officers determined upon by such corporate meeting and their successors in office, shall, by virtue of their respective offices be trustees of such church.” Action was taken under this section by the con- eregation of Westminster Presbyterian Church of West Twenty-third street, and the pastor and ruling elders were constituted the trustees in April, 1905. By section 2 of article 46 of that act it is further provided that: “Tf any trustee of an incorporated church to which this article is applicable, declines to act, resigns or dies, or having been a member of such church, ceases to be such member, or not having been a member, ceases to be a qualified voter at a corporate meeting thereof, his office shall be vacant.” II. . Decisions. Under the Acts of 1875 and 1876, there have been several decisions, which cover all of the questions in this case. The first was the case of First Reformed Presbyterian Church y. Bowden, 10 Abbotts New Cases, p. 1, decided on a motion to dissolve an in- junction in the New York Supreme Court, Special Term, 7th District, in December, 1860. The action was brought by the church against Samuel Bowden. The church members of the corporation, plaintiff, belonged to the Reformed Presbyterian Church of North America. Eleven elders commonly composed the session. The church had had no pastor since De- cember Ist, 1876. Its pulpit had been supplied by persons designated hy the Rochester presbytery of that church. The defendant Bowden had been, for a long time, such pastor and for thirty years belonged to that presbytery. After he ceased to be pastor, a majority of the persons in the society extended a call to him; but this act was not approved by the presby- tery, and it would not permit his installation. There- upon the defendant Bowden took measures to sever his relations with the Reformed Presbyterian Church, and to establish connections with another religious denomination known as the Presbyterian Church. In October, 1880, a majority of the congregation, including three of the trustees, voted to apply to the Rochester Presbytery of the Presbyterian Church, with the object and purpose of changing the ecclesiastical connection of the plaintiff from the Reformed Presbyterian Church to the Presbyterian Church and for the purpose of diverting the temporalities of the plaintiff to the use of another religious denomination. The defendant Bowden also persisted in preaching in the plaintiff's pulpit in contempt of the rules and discipline of the church. An injunction was granted on the plaintiff's application and this motion 10 was to dissolve it. McComprr, J., after stating the facts, says: “ Prior to the passage of the Act of 1875, Chapter 79, the courts of this State took no notice of the de- nominational character of religious corporations and consequently could not enforce any ecclesiastical law or rule of church government which did not spring from the corporation itself but was imposed upon it from without”. Citing : Petty v. Tooker, 21 N. Y. 267; Gram vy. Prussia, &c., German Society, 36 100161; Trustees St. Jacob’s Lutheran Ch. of Eden v. Bly, 73 zd. 323. People e« rel. Dilcher v. Ger. U. Ev. Church, 538 7d. 103. Watkins v. Wilcox, 4 Hun, 220. Then, after quoting the Act of 1875, above referred to, he says: “The facts disclosed in the affidavits bring this case with peculiar force within the provisions of that statute. Those facts are in brief that the defendant Bowden’s further services as pastor were not approved by the ecclesiastical authority to which his church was subordinate. Dissatisfied with this he, with a ma- jority of the trustees, took steps to form new religious connections and to carry the property of the church, as well as the congregation, along with him. With the personal freedom and action of the trustees the statute does not meddle; but it does say to them, first, ‘“ When you cease to be members of the church, con- gregation, or society, by removal or otherwise, you shall cease to manage the affairs of that church ; and, ‘second, that the temporalities of the church shall be administered for the benefit of that corporation, ac- cording to the discipline and laws of the denomination to which the church members of that corporation be- long. In these two particulars, the defendants are shown to be within the condemnation of the statutes. It is therefore the duty of the court, under the authority given by the sixth section of the Act to interfere by injunction and thus prevent the diversion of the property and revenues of this church ”. 11 Further, as to the authority of a minority of the trustees consisting of ore trustee to institute the ac- tion in the name of the corporation, he says : “ Under the case as thus admitted, there can be no doubt of the power of that trustee to institute this ac- tion in the name of the corporation. lndeed, had all of the trustees followed the pastor in this hegira, the church and society would not have been remediless, for in such cases, any member of the church could have brougnt an action, if not in the name of the corpara- tion, at least in his own name, for the benefit of all the members. Greaves v. Gouge, 69 N. Y. 154.” Order of injunction granted. This order was affirmed on appeal by the General Term adopting the opinion of McComserr, J. (10 Ab- botts N. C., 1.) The case of First Reformed Presbyterian Church vy. Bowden, above alluded to, also came before the Gen- eral Term of the Fourth Department and is reported under the same title in 14 Abbotts New Cases, 356. This was upon a second appeal from an order denying defendant’s motion to dissolve the injunction. ‘The first motion before McComper, J., was upon the plaintiff's papers alone, but in this latter appeal there were affidavits from the defendant and an answer of the defendant, and on these the motion was made. In this latter motion and the appeal therefrom the question was again considered by Judges SmirH, HARDEN and Haicur. The question particularly pressed upon the court was that the minority trustee could not invoke the remedy by injunction. Concerning this, SMIrH, il GAYS. : “ By whom may this statutory remedy be invoked ? If the wrongdoer is not one of the trustees, doubtless by the trustees in the name of the corporation. Why ? Because the statute charges them with the care of the temporalities of the corporation and impli- edly makes it their duty to prevent any diversion of them. So, if the wrongful act be done bya mi- nority of the trustees, it can hardly be questioned but that the majority may sue in the name of the 12 corporation. And if all the trustees were engaged in despoiling the corporation, any private mem- ber of the corporation might bring suit on behalf of himself and the other members, but in such case itt would be necessary to sue in his own name and make the trusiees and the corpsration defendants. (3 Paige, 233). But is that course necessary or proper where one of the trustees (although a minority of the whole number) is not implicated in the wrong? He is not divested of his office or of his powers and duties by the unfaith- fulness of his colleagues. They by their misconduct have virtually abdicated their official functions, so far as the bringing of suit is concerned, and why may he not sue in the name of the corporation ?” 14 Abbotts New Cases, 356. Motion to dissolve denied. In Isham vy. Fullager, 14 Abbotts New Cases, 363, the interpretation of these acts of 1875 and 1876 was presented to the Special Term of Chatauqua County, BarkeEr, J., upon the following state of facts : The Presbyterian Church of Dunkirk was incorpo- rated under the law of 1813 and was connected with the Presbyterian denomination, and was connected with and subject to the control of the pres- bytery of Buffalo. Its pastor was one Adams, who had been regularly ordained as a minister of the Pres- byterian Church, and installed as pastor over this Dunkirk church in the summer of 1880. By the action of the Buffalo presbytery he was deposed from his office on the charge of unsoundness in faith and doctrine. Notwithstanding this, the majority of the board of trustees who were defendants in the action, maintained Adams as pastor, and opened the church for him, and allowed him to occupy the pulpit as formerly. This position of Mr. Adams in disregarding the action of the presbytery, and of the majority of the trustees was concurred in by a majority of the members of the First Presbyterian Church of Dunkirk. The plaintiffs in the action were the minor- ity of the church members who sought to sustain the 13 decision of the presbytery, and Mr. Justice Barker thus states their contention : ““ Upon these facts the plaintiffs seek to restrain the trustees and officers of the corporate body from opening the church and suffering Mr. Adams to oceupy the pulpit as minister over this congregation, because being a fuct deposed from the holy office of minister, it is contrary to the discipline, rules, and usages of the Presbyterian Church for him to continue that relation with the society. That it is wrong and an offense to their religious convictions to be compelled to receive from a deposed minister spiritual instruction or the sacraments recognized by this denomination. The trustees have not sought, as yet, to sever this society from the ecclesiastical relations which it held at the commencement of this unfortunate controversy with the high judicatories of the presbyterian govern- ment; but insist that their action is defensible and loyal to the faith and polity of the Presbyterian Church. That the attempts of the presbytery to de- pose Mr. Adams was unjust; without good and sufh- cient reason ; that he is true and sound in faith and doctrine ; that the adherence which they and a majority of the congregation manifest towards Mr. Adams is from motives and convictions entirely consistent with their faith as presbyterians, which they have not re- linquished.”’ The learned judge then considers the contention of the defendants that the majority of the members of the church were authorized to determine respecting the matters of which they were complained of, and says in that particular : “Tt is argued by the learned counsel for the defend- ants that ‘the church or denomination’ as mentioned in the late acts, poimt to the local church or society and the members thereof and that it is the rules, cus- toms, and discipline of this body that the trustees are to observe and follow in administering the duties and trusts conferred upon them. That their action is in- dorsed by a majority of the members of the local society and therefore their conduct is justified and the meaning and intention of the law observed. In in- stances where the local religious society, by the nature and character of its organization, is strictly independ- © 14 ent of other ecclesiastical organizations and so far as its church government is concerned owes no fealty or obligation to any higher authority, the argument is sound and obviously. true for the reason that no other body or society could be interested. Such an organ- ization is independent, governed solely by itself. It can and may create its own form of government and establish its own faith and doctrine, create its own customs and usages and alter them at pleasure. But to hold in this case that the local society is the ‘church or denomination’ whose usages and discipline the defendants, as trustees, must observe, is to ignore an admitted and prominent fact. In the presbyterian form of government, the local congregation is but a member of the larger and more important religious organization, and is under its goy- ernment and control and is bound by its orders and judgments in purely spiritual matters. There are, in this system of church organization, three judica- tories or representative bodies, the session, the presbytery, and general assembly. The purpose, power and jurisdiction of each is distinctly stated and promulgated in the printed books containing its his- tory, articles of faith and ordinances which constitute the body of the ecclesiustical law which governs this denomination. The church session repiesents and is chosen by and from the local society, but it has no authority to create and issue rules of discipline and establish usages and customs in religious matters ; in this respect it is wholly subordinate tothe presby tery, which body is vested with the functions “to resolve questions of doctrine and discipline”, ‘to ordain, in- stal, remove, and judge minsters ”, and, in general, “ to order whatever pertains to the spiritual welfare of the churches under their care.” The jurisdiction possessed by the higher tribunals, the synod and _ general assembly, it is unnecessary to mention. It is therefore altogether certain that so far as this particular denom- ination is concerned, it is not the usages and customs of the iocal congregation or the session of the local ehurch that the trustees are under obligation to observe and carry out. * * * This to my mind is a plain case where the trustees are using a portion of the tem- poralities of the corporation contrary to the usages, customs and discipline of the Presbyterian Church to which this corporation is attached. * * * It is now well settled law that one alone of many incorpora- tors can file a bill in his own name on behalf of all the 15 other incorporators who feel aggrieved to prevent and restrain the officers and agents of a civil and private incorporated body from diverting and misusing the property funds and revenues belonging to the cor- poration.” Injunction granted. In August, 1882, at Special Term, this same case again came before the courts on a motion for an in- junction restraining the trustees from closing the church edifice, and thereby preventing its use by the church session and congregation. This case is reported in 63 Howard’s Practice Reports, 465. It came before DanizLs, J., long-time judge in that department, and well and favorably known in this department, and was by a minority of the members against the action of the board of trustees. The learned judge, in delivering his opinion, said, in this case, respecting the purpose of the laws of 1875 and 1876: “ The plain purpose of these acts was to abrogate the rule which had grown out of the preceding con- struction given to the act of 1813 and to deprive the congregation as well as the trustees of the society of the power afterwards to divert the church property from the promotion and dissemination of the religious views of the persons obtaining and acquiring it to the promulgation and maintenance of any different systems of religious belief. Instead of holding the property subject simply to the disposition of the voting major- ity of the congregation, the trustees were henceforward required to hold and devote it to the uses and purposes of the denomination of Christians in which the society should be included that obtained and acquired it. Under these acts they became 1n fact as well as in name trustees of the religious corporation by whose members they should be elected and bound to hold the church property according to the discipline, rules, and usages of the denomination, including the corporation itself. These acts were substantially so construed by Mr. Jus- tice BarKER for the purpose of sustaining an injunc- tion and preventing the deposed clergyman from occu- pying this church edifice and they are acquiesced in and adopted as a proper exposition of these enact- ments.” 16 Then after determining that these statutes are not open to the objection of depriving the owners of prop- erty withont due process of law, he says further: “When the clergyman, officiating as such in this society adopted and advocated religious views at variance with the presbyterian articles of “be lef, he, by force of these provisions of the statute, forfeited his right to use this church edifice for their dissemination. The trustees by the plain terms of the act, were deprived of the authority to allow the church property to be a/fter- wards used by him, for it was made their duty to hold it subject to the rules and usages of the denomi- nation of which this society was a “member and that precluded its devction to the inculcation of any system of religious belief adverse to what was adopted and maintained by the presbyterian denomination. This surely was the situation after the clergyman himself had been deposed by the action of the presbytery to which he himself was amenable, as well for his faith ag for his conduct. As long as no good reason appears for doubting the substantial regularity of the proceed- ings taken by the presbytery for this purpose, after he was deposed, he certainly had no right to occupy this church property as a clergyman, and he as well as those entertaining his views seem to have acquiesced in the propriety of that conclusion by holding religious services conducted by him at another place ; these acts effectually removed him from this society and its mem- bers who followed him and adlrered to him in the pro- motion of his change of views must for like reason also be regarded as having voluntarily relinquished their rights as members of this religious incorporation. This re- sult is to be deduced from the substance and effect of the changes made in the management of corporate re- ligions societies by the acts of 1875-6, for they in terms secure the appropriation of such property for the de- nominational purposes for which it was acquired, and they, who, dissenting from that use of the property, vol- untarily leave the society and enter into another more consonant to their religious views, must, consequently, be regarded as abandoning and relinquishing the rights and privileges they would be entitled to enjoy if such a change had not taken place. After that, the persons whom the law will regard or recognize as the society and to the inculeation of whose views the corporate property is to be devoted, are _those who are engaged in maintaining and promoting the views of the denomination in whose name the 17 church property was acquired. They remain the legally organized religious society protected by law and entitled to enjoy and occupy the property of the corporation. For this purpose, under the rules and usages of the denomination, a majority of such persons entitled to vote may by petition request the session to convene them for the transaction of any chureh or secular business at the time requiring their atten- Lice ca ahgt. oo “ It seems to follow that the trustees must be so far enjoined by the order of the court as to prevent them from closing the church edifice to meetings proposed to be convened by the session upon the petition of a majority of the persons now entitled to vote as mem- bers of this society and still adhering to the articles of faith of the Presbyterian Church and from closing the church edifice against the same persons desirous of gathering there on the sabbath day, in comphance with and under the authority of Chapter 21 of the Form of Government of the church. So far as persons still adhering to the religious faith and articles of belief of their denomination, and who have heretofore been “members of this congregation, are entitled to be con- tinued in the use and enjoyment of this church prop- erty (Watson v. Jones, 13 Wall, 680).” Which of the views involved in this controversy may abstractly appear to be the most entitled to support, is not a question with which a Court of Justice has anything to do in an application of this nature. Its power and authority are proprietary in their nature. It is simply required to ascertain what may be the law of the case, and when that is ascertained to en- force it, irrespective of the religious views of either of the contestants. Upon this subject there appears to be no serious ground for doubt, and to the extent already indicated, an injunction will be allowed re- straining and controlling the conduct of these trustees in the use of this church property.” The case cited with approval by Judge Danizts (Watson vs. Jones, 13 Wall., 679) is a leading case in the United States upon the question of the complete recognition by the civil courts of the full authority of the ecclesiastical courts to pass upon all ecclesiastical questions, and particularly of their right to decide finally the ecclesiastical status of all the members of such bodies, without revision or review by the civil 18 courts, and the opinion contains a full reference and review of the American cases upon that subject. The case is very instructive and points out clearly the dif- ference between the American rule in which the civil courts, accept the conclusions of the ecclesiastical tribunals, as final upon ecclesiastical questions, and the English rule, where the civil courts review the action of the ecclesiastical tribunals. The opinion by Mr. Justice MILLER discusses the whole question and the following paragraphs summarize the decision. He Says: “In this country the full and free right to en- tertain any religious belief, to practice any re- ligious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not in- fringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establishment of no sect. The right to or- ganize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual mem- bers, congregations and ofticers within the general as- sociation is unquestioned. All who unite themselves to such a body do so with an implied consent to this government and are bound to submit to it. Butit would be a vain consent, and lead to the total suppression of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have tem reversed. It is of the essence of these re- ligious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. “Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. Hach of these large aud influential bodies (to mention no others, let refer- ence be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian Churches), has a body of coustitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of dis- cipline, in their collections of precedents, in their 1 usage and customs, which, as to each, constitute a system of ecclesiastical law and religious faith, that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and relig- ious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so. “ We have said that these views are supported by the preponderant weight of authority in this country, and for the reasons which we have given, we do not think that the doctrines of the English Chancery Court on this subject should have with us the influence which we would cheerfully accord to it on others”. (pp. 728, 129). Then, after reviewing a number of American author- ities, he says further : “ We cannot better close this review of the authori- ties than in the language of the Supreme Court of Pennsylvania, in the case of German Reformed Church vs. Seibert (3 Barr, 291): “ The decisions of ecclesias- tical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be in- competent judges of matters of faith, discipline, and doctrine ; and civil courts, if they should be so unwise as to attempt to supervise their judgment on matters which come within their jurisdiction, would only in- ‘volve themselves ina sea of uncertainty and doubt which would do anything but improve either religion or good morals”. In the subsequent case of McGinnis v. Watson (41 Penna. State 21) this principle is again applied and supported by a more elaborate argument” (p. 732). * * * * * * “ But we need to pursue this subject no further, Whatever may have been the case before the Kentucky court, the appellants in the case presented to us have separated themselves wholly from the church organiza- tion to which they belonged when this controversy commenced. They now deny its authority, denounce its action and refuse to abide by its judgments. They have, first, erected themselves into a new organization and have since joined themselves to a totally different, if not hostile, to the one to which they belonged when 20 the difficulty first began. Under any of the decisions which we have examined, the appellants in their pres- ent position, have no right to the property, or to the use of it, which is the subject of this suit” (p. 734). Mr. Justice Miter, in the course of his opinion, cites and considers the cases of Smith v. Nelson, 18 Vermont, 511. Shannon v. Frost, 3 Ben Monroe, 253. Gibson vy. Armstrong, 7 Ben Monroe, 481. Den y. Bolton, 7 Halstead (N. J.), 206. German Reformed Church v. Seibert, 3 Barr, 282. McGinnis e¢ al. v. Watson, e¢ a/s., 42 Penn. St., 1. Ferraria v. Vasconcelles, 23 Illinois, 456. Watson v. Farris, 45 Missouri, 183, all sustaining the same doctrine as announced by him in the paragraphs quoted ante, and as announced by DanteELs, J. It is not deemed necessary to quote from them, in the absence of any respectable authority to the contrary. Two recent decisions very clearly indicate the opinions of the American Courts upon this subject. The case of Dayton v. Carter, 206 Penn. 491, decided in 1903, holds that where an attempt was made in a civil court to test the validity of the election of a session, it was a question for the ecclesiastical courts, and not for the civil courts, and also that where a presbytery regularly convened at a stated meeting exercised its right to direct elders to cease acting without citing them to appear, or to be heard in their own behalf, and such action was held constitutional by the General Assembly of the Presbyterian Church, that the civil courts will follow that ruling without question, In the Appellate Court of the District of Columbia, 20 Appeals, 393, in the case of Satterlee v. United States ex rel. Williams, the question arose under the constitution and form of goverment of the Protestant Episcopal Church and was very thoroughly argued by leading lawyers. Chief-Justice ALvry delivered the opinion of the Court after a very careful consideration 21 of the whole subject. The syllabus presents the con- elusions very clearly in the following points: “There is no power or jurisdiction in the civil courts of the common law jurisdiction to review and correct by certiorari supposed errors in the proceed- ings and judgment of a diocesan court organized under canons of the general and diocesan conventions of the Protestant Episcopal Church, in matters of ecclesias- tical cognizance, such as charges of crime or immoral- ity against a clergyman of the church, bat the judg- ment of such court is conclusive. Because by deposition from his office, a clergyman of the Protestant Episcopal Church as a result of a sentence of the diocesan court, is-deprived of the right or power to exercise the functions of a minister of the church, and of the right to earn a salary as such minister, a property right is not thereby involved which will give the civil courts jurisdiction to review by certiorari the action of such diocesan court, there being no vested property right in a clergman to exer- cise the functions of his office to the end that he may earn and have a salary. | Irregularity under the canons of the church in the organization of the diocesan court of the Protestant Episcopal Church ; refusal of such a court to enter- tain a challenge taken by a clergyman on trial before it to one of the members of the court; supposed insufficiency of the evidence upon which the accused could be convicted, under the provisions of a certain canon, are questions of procedure, where they involve construction of the canons of the church, and depend upon the judgment of the ecclesiastical court, over which the civil courts can exercise no power of revision or control.” While the English courts, as stated above, exercise a revisory power over the ecclesiastical courts in mat- ters ecclesiastical, yet the same courts do not differ from the American courts in the principles which they apply respecting property rights. Those courts recognize the rights of the denomination to the prop- erty which has been given to the denomination, and where there has been, as in the case at bar, a seces- sion of a majority of the members of the particular church, or of the whole body, leaving only a small minority adhering to the original denomination, yet 22 the English courts recognize the rights of the minority to the control of the property. This is strikingly illus- trated in the notable cases of the General Assembly of the Free Church of Scotland and others, appellants, against Lord Overtoun and others, respondents, McAllister and others, appellants, against Young and others, respondents, decided in the House of Lards in the year 1904 and reported in Law Reports, Appeal Cases (H. L.) 1904, 515-764. In this case the Syl- labus states the essentials of the decision as appled to the question we are considering : “ The denomination of Christians which called itself the Free Church of Scotland was founded in 1843. It consisted of ministers and laity who seceded from the established church of Scotland, but who professed to carry with them the doctrines and system of the estab- jished church, only freeing themselves by secession from what they regarded as interference of the state in matters spiritual. ‘Two main fundamental doctrines which the appellants, the minority of the Free Church, asserted that the seceders in 1843 carried with them and issued in their Claim, Declaration, and Protest to their supporters and benefactors in that year to stand for all time, were the establishment principle and the unqualified acceptance of the Westminster Confession of Faith, and they further asserted that these doc- trines were part of the constitution of the Church and could not be altered. In 1843 and subsequent years the response to the appeal for funds was most bounti- ful. and the Free Church was endowed by the liberality of its members, the property being secured under what was called a ‘* Model Trust Deed.” For many years efforts had been made to bring about a union be- tween the Free Church and the United Presbyterian Church, also seceders from the Established Church, but a church pledged to disestablishment. In 1900 Acts of Assembly were passed by the majority of the Free Church and unanimously by the United Presby- terian Church for union, under the name of the United Free Church, and the Free Church property was con- veyed to the new trustees for behoof of the new church. The United Presbyterian Church was op- posed to the Establishment principle, and did not maintain the Westminster Confession of Faith in its entirety. The act of union left ministers and laymen free to hold opinions as regards the Estab- 23 lishment principle and the predestination doctrine (in the Westminster Confession) as they pleased. The respondents contended that the Free Church had full power to change its doctrines so long as its identity was preserved. The appellants, a very small minority of the Free Church, objected to the union, inaintaining that the Free Church had no power to change its orig- inal doctrines or to unite with a body which did not confess those doctrines, and they complained of a breach of trust inasmuch as the property of the Free Church was no longer being used for behoof of that church. And they brought this action in the name of the General Assembly of the Free Church, asking sub- stantially for a declarator that they, as representing the Free Church, were entitled to the property. Held, reversing the decision of the Second Division of the Court of Sessions (Lords MAcNAUGHTEN and LInviey dissenting), that the Establishment principle and the Westminster Confession were distinctly tenets of the Free Church; that the Free Church had no power, where property was concerned, to alter or vary the doctrine of the church; that there was no true union, as the United Free Church had not preserved its identity with the Free Church, not having the same distinctive tenets ; and that the appellants were en- titled to hold for behoof of the Free Church the prop- erty held by the Free Church before the union in 19002 It may be claimed that the two constituent religious corporations which formed the Westminster Presby- terian Church of West Twenty-third Street, were formed under the old Act of 1813, and, therefore, are subject to a different rule, and the earlier decisions in New York have application, either because of the difference in the original act, or by reason of some clause in their original acts of incorporation. This cannot be so because this consolidation was the formation of a new corporation in 1889 under the act then in force. (Complaint, folio 125.) No provisions in the charters in the old churches could have any material bearing because the con- solidation of 1889 was subject to the provisions of the Acts of 1875 and 1876. The effect of consolidation of corporations under statutes has been frequently 24 considered and it is quite well-settled law that such consolidation is a surrender of the charters of the old corporations and the taking out of a new charter. Any special exemptions or provisions existing in the original charters are, therefore, lost unless the statute under which the consolidation takes place expressly preserves them. This is clearly held in the leading eases of Shields v. Ohio, 95 U. S., 319; Railway Company v. Georgia, 98 U. S., 359. In the first case above cited one of the constituents. of a consolidated railroad company had an unlimited right to fix rates. This was claimed by the con- solidated company to belong to it as against a limitation created by later statutes. This right was denied by the Court. In the second case the right of exemption from taxation on the same ground was denied. Re-Capitulation. (1) The defendant John Lloyd Lee’s position has been defined by the Presbytery of New York, in answer to his letter to the Stated Clerk of that body. That decision defined his ecclesiastical status, and such decision will not be reviewed by the Civil Courts. (2) That decision is that he is no longer pastor of the Westminster Presbyterian Church of West Twenty- third Street. The position of the other \lefendants has likewise been definitely settled by the Presbytery. That decision is that they are no longer members of the Session of Westminister Presbyterian Church of West Twenty-third Street, or members of the Presbyterian Church in the United States of America. That is a decision as to their Ecclesiastical Status, which the Civil Court will accept as a fact, and not attempt to review. (3) The defendants position as Trustees of the Civil Corporation is however wholly dependent upon or 25 determined by their ecclesiastical position, for the state law makes it thus dependent. (4) If the defendant Lee has ceased to be pastor the other defendants have no right under the limita- tions of the Religious Corporations Act of New York to allow him to occupy the property of Westminister Presbyterian Church of West Twenty-third Street or use it for preaching purposes. (5) If they have ceased to be members of the Pres- byterian Church and members of the Session then they are no longer Trustees and have no right or power to control or use this property for any purpose whatever. (6) The statutes of New York and the authorities cited in the brief, from New York and elsewhere, define the use of the Church property by the defendants under the foregoing facts as a breach of a solemn trust and diversion of funds to improper uses. (7) For the foregoing reasons the injunction asked for should be granted pending the trial of this action, Respectfully, RusH TaGGcart, Attorney for Plaintiffs. 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