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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 88 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 91 While the question certified to us for decision involves, directly, the sufficiency of the third defense set forth in the answer, it involves, indirectly, as we have held, the sufficiency of the complaint also. (Baxter v. McDonnell, 154 N.Y. 432.) When reduced to their simplest form the substantial allegations of the first cause of action purporting to be alleged are that, by the rules and regulations of the Holy Roman Catholic Church, in the diocese of Brooklyn, the bishop holds all its property, in his own name, as trustee for its benefit, and is liable, individually, upon all contracts for services rendered or materials furnished to the church; that each priest assigned to duty is authorized to hold the bishop, individually, liable for his salary, and that it is the duty of the bishop to provide by will for the devolution of all the trust property to the church or to his successor; that in September, 1885, the plaintiff was appointed pastor of a parish in said diocese by Bishop Loughlin, who died in December, 1891, after devising and bequeathing all the trust property, held by him for the church, to his successor in the bishopric; that in May, 1892, the defendant was installed as bishop and soon after received the trust property subject to the trust upon which his predecessor had held it, and upon accepting the same on his installation as bishop agreed, by virtue of the law of the church, to pay all debts incurred and to perform all contracts entered into by the late bishop in *Page 92 behalf of the church, in the same manner and to the same extent as if the debts had been incurred and the contracts entered into by himself. There were further allegations to the effect that, upon this basis of liability, the defendant was indebted to the plaintiff in a certain amount.
The second cause of action is based on the assignment of the plaintiff to duty as chaplain of a hospital, made by the defendant on the 4th of December, 1892, and it is claimed that by virtue thereof he became entitled, under the constitution and ordinances of the church, to a salary of $1,000 per annum, and that the defendant is indebted to him for the balance unpaid on that basis.
Thus, in both counts of the complaint the liability of the defendant is founded upon a promise implied, as it is claimed, from the law of the church. In the first count two promises are said to arise therefrom, one on the part of Bishop Loughlin to become personally liable for the salary of the priests, and the other on the part of Bishop McDonnell to discharge the obligations assumed by his predecessor in office. The theory of the complaint is, that while the bishop holds the property of the church in trust for its benefit, he is personally liable for all services rendered to it in his diocese. No express agreement to that effect is alleged, but simply one to be implied from the rules and regulations of the church. No consideration is suggested, unless one springs from the relation of trust existing between the bishop and the church, and that relation is dependent upon the law of the church. Yet there is nothing to show the nature of the church, except as it may be implied from its name and the names given to certain of its officers. There are no allegations as to its civil rights, power or capacity. We cannot tell from the complaint, which is our sole guide, whether it is a corporation, a voluntary association, or a mere name, adopted by the pleader for some purpose undisclosed. What it is, that it can do and what can be done to it; whether it can become the beneficiary of a trust and enforce its rights as such, or sue and be sued, are not made known to us. No valid trust is alleged, unless the church is *Page 93 shown to be a body capable of making a contract and suing to enforce it. A trust created by the rules of a church which is not shown capable of making contracts, accepting benefits or compelling performance, is not recognized by the law. The pleader seems to have assumed that the court would take judicial notice of the nature and powers of the Holy Roman Catholic Church, so far as its civil rights and duties are concerned, without any averment or proof upon the subject. Judicial notice is to be taken with caution, and every reasonable doubt as to the propriety of its exercise in a given case should be resolved against it. (Brown v. Piper, 91 U.S. 37; 12 Am. Eng. Ency. of Law, 151.) According to the general practice of the courts in all jurisdictions proof has been required upon the subject of church rights and powers, and whatever is to be proved must be alleged. Even if we should attempt to take judicial notice of the legal powers and duties of the church, it is doubtful whether the result would aid the plaintiff. Thus, Judge STRONG, in his work on "Relations of Civil Law to Church Polity," says: "A very large portion of the religious societies in the country are unincorporated, and in a few of the states charters cannot be obtained for them. They are, therefore, not legal entities, recognized as having a legal existence. They can neither sue nor be sued in civil courts. They cannot hold property directly, yet they may control property held by others for their use. Donations and grants may be legally made to trustees for the use and benefit of an unincorporated religious society or for the support of the gospel ministry in connection with any particular church." (p. 71.)
"There is still another mode in which property is largely held in this country for religious or church uses. In the Moravian congregations the property devoted to pious uses is held neither by a corporation nor by trustees, nor yet by the congregation itself. In some of the congregations, and I presume in all, the title to the churches, schoolhouses and cemeteries is held by the bishop, who transmits it by will to his successor in office. And such is the tenure of most Roman *Page 94 Catholic churches in the country. The title to the real estate resides in the bishop of the diocese. In a certain sense he is a trustee thereof for religious uses, but there is no declaration of trust, and he controls the enjoyment and transmits the title by devise. The purpose of this arrangement is to exclude the laity from that power of interference which they would have were the title vested in a corporation. But, inasmuch as the holders of such titles are not corporations, either sole or aggregate, as are the English bishops, deans, and even parsons, lands held by them do not pass to their successors in office unless through the instrumentality of a deed or will." (p. 109.)
We have been referred to no statute authorizing the incorporation of the church at large. By chapter 45 of the Laws of 1863 provision was made for the incorporation of Roman Catholic churches and for the government thereof, but it is confined to a congregation, society or assemblage of persons accustomed to statedly meet for divine worship. This is now embodied in the Religious Corporations Law, which also provides for the incorporation of ecclesiastical bodies with governing authority over churches. (L. 1895, ch. 723, §§ 14, 50 and 51; L. 1876, ch. 110; L. 1886, ch. 210; L. 1882, ch. 23.)
Under the act of 1813 both real and personal property may be held in trust for the use of an unincorporated religious society without any restriction as to time, except that it shall terminate upon the lawful incorporation of the religious society, when, by virtue of the act, the title vests in the corporation. (L. 1813, ch. 60, § 4.) This also refers to congregations and not to the church at large. Indeed, in Petty v. Tooker (21 N.Y. 267,270), it was held that the existence of the church proper as an organized body is not recognized by the municipal law. In VanBuren v. Reformed Church of Gansevoort (62 Barb. 495, 497), it was said: "In order to give an organization for public worship legal rights, and to impose on it legal obligations as a corporate body, there must be a special law declaring its existence, or there must be an incorporation under the provisions of the general law *Page 95 relating to religious societies." And, in Hardin v. BaptistChurch (51 Mich. 137) Judge COOLEY said: "The church is not incorporated and has nothing whatever to do with the temporalities. It does not control the property or the trustees; it can receive nobody into the society and can expel nobody from it. On the other hand, the corporation has nothing to do with the church except as it provides for the church wants. It cannot alter the church faith or covenant, it cannot receive members, it cannot expel members, it cannot prevent the church from receiving or expelling whomsoever that body shall see fit to receive or expel."
In Silsby v. Barlow (16 Gray, 329) it was said that "churches are not corporate bodies and commonly have no occasion for the exercise of corporate powers."
Kynett Cotton, in their work on Churches and Other Religious Societies, say that "These two bodies, namely, the religious corporation and the church, although one may exist within the pale of the other, are in no respect co-relative. The objects and interests of the one are moral and spiritual; the other deals exclusively with things temporal and material. Each as a body is entirely independent and free from any direct control or interference by the other. * * * The church by the nature of its organization may be entirely independent of other ecclesiastical associations; or may be a subordinate part of some general organization or denomination in which there are superior ecclesiastical tribunals, with general and ultimate power of control, more or less complete, in some superior judicature over the whole membership of the general organization."
These citations show the danger of an attempt to take judicial notice of what the civil rights of the Holy Roman Catholic Church are, and emphasize the necessity of allegations in the complaint as the basis of evidence upon the subject.
We have no statute to guide us upon the assumption that, by implication, it is part of the complaint. If, instead of the Holy Roman Catholic Church, the pleader had made use of an abstract term or a name that might be applied to various *Page 96 organizations, incorporated or voluntary, the complaint would have had the same effect as a pleading that it now has. If, wherever the word "church" appears, by its full name or otherwise, a mere abstraction had been used, as, for the sake of illustration the letter "X," the complaint would then allege that by virtue of the rules and regulations of "X" the defendant assumed certain obligations and the plaintiff became entitled to certain rights, yet no one would seriously contend that such allegations constituted a cause of action. The defendant cannot be held liable on the contracts of his predecessor, unless he has expressly agreed in proper form and for a sufficient consideration to become liable thereupon. An agreement by one person to become liable for the debts of another must be an express promise in writing, and cannot arise by implication from the fact of membership in an organization having rules to that effect. The personal contracts of a bishop are the same as those of a layman, so far as their form, force and effect are concerned. This is true of his engagements as trustee. The same evidence is required to constitute a "church trust" and to bind a bishop as trustee thereof, as would be required in the case of a layman alleged to be a trustee, under like circumstances. The mere receipt of property by one person, alleged to be the trustee of such a trust, under the will of another person, alleged to have been the preceding trustee thereof, forms no consideration for a promise subsequently made by the former, as an individual, to or for the benefit of third persons. No promise in any form is alleged to have been made by the defendant to the plaintiff, but simply a general promise, made to the church, as we read the complaint, by virtue of its rules and regulations. The promise could not have been made to Bishop Loughlin, for he was not alive when it is said to have been made. A promise made to pay the personal debts of the deceased bishop out of trust funds could not be enforced, as it would be a misappropriation. If, as alleged, Bishop Loughlin was individually liable to the plaintiff for his salary, that individual liability could be enforced against his individual estate by the usual procedure *Page 97 against his personal representatives. We find no trust set forth that is capable of enforcement, but simply a moral obligation, dependent entirely upon the integrity of the bishop. For aught that appears, the church at large depends wholly upon moral power to carry on its functions without appealing to the civil authorities for aid, either through the legislature or the courts. The complaint alleges no common-law, equitable or statutory cause of action. If all averments relating to the rules and regulations of the church were stricken out, nothing of substance would remain upon which the defendant could be held liable. No force can be given to the rules and regulations as alleged, because there is no allegation as to the civil standing, position or rights of the body that is supposed to have made them. Even if an express promise had been made by the deceased bishop, as an individual, to the plaintiff, instead of a promise implied from the usages of the church, there would have been no consideration to support an agreement by the defendant, as an individual, to carry out the promise made by his predecessor. The receipt of trust property by him, as trustee, constitutes no consideration for an individual promise. In other words, the defendant cannot be held liable as trustee of the church to use trust funds to pay the individual debts of Bishop Loughlin, for that would be an unlawful use of trust funds, and he cannot be held liable, as an individual, to pay those debts for the want of a sufficient consideration and an express promise in proper form.
The claim of the respondent, that the bishop, individually, is the employer of the plaintiff and liable as such for his compensation, is not sustained by the complaint. The legal relation of master and servant is not alleged, either expressly or impliedly, for, according to the complaint, the bishop, as such, holds the property of the church in trust, and has the power to assign priests to duty, but is liable as an individual and not as trustee, for the services of the priests upon such assignments, by virtue of the laws of the church and not through his personal promise. Obviously this relation is in no sense that of master and servant, but that of an ecclesiastical superior and *Page 98 inferior, with an alleged obligation arising from the laws of the church on the part of the former to become personally liable for the services rendered by the latter to the church. The relation of priest and congregation is not involved, but that of priest and bishop.
This subject was considered in Tuigg v. Sheehan (101 Pa. St. 363), where a priest sued his bishop for salary, and the canon law bearing on the organization of the church and the relation of the priesthood and the bishops was before the court. The trial court found that the plaintiff was entitled to a salary of $800 per year under the common law of the church, which guaranteed him a support when he was ordained as priest. The Supreme Court, however, held that while the organic law of the Roman Catholic church was to the effect that the church was bound to provide a decent support for its priests, this did not constitute an implied contract on the part of the bishop of the diocese to support the priests therein; that no priest, in the absence of an express contract, could bring assumpsit against his bishop for an amount sufficient to decently support him, and that the relation between a Roman Catholic bishop and priest is not that of hirer and hired, or principal and agent. In deciding the case the court said: "The plaintiff alleges that the law of his church creates a duty from which springs an implied contract on the part of the bishop to support him so long as he remained a priest of the diocese, and was not convicted of any offense or suspended from his priestly functions. Is this position sound? The obvious test is to reverse the position and treat this as a suit by the bishop to recover damages from the plaintiff for a failure to perform his priestly functions, or any duty prescribed by his ordination vows. No one will contend that such a suit could be maintained. The plaintiff can lay down his office and its duties at pleasure. For doing so he could only be visited with ecclesiastical censure, and such punishment, if any, as the canons of the church prescribe. The bishop would have no remedy in the courts of law. It will thus be seen that there is no mutuality. * * * It would be doing a wrong to the Catholic church and degrade *Page 99 its priesthood from their high position were we to hold that the relation between the bishop and his priest was that of hirer or hired, of employer and employee. The moving consideration in such contracts is the pecuniary advantages flowing from the relation. When a priest dedicates his life to the church and takes upon himself the vows of obedience to its laws, he is presumed to be actuated by a higher principle than the hope of gain. Where he has an actual contract with his congregation or his bishop for a salary, it may be enforced as any other contract; but where he relies upon the duty of his church to support him, he must invoke the aid of the church if he seeks redress."
In Rose v. Vertin (46 Mich. 457) it was held that a bishop is not liable for the salary of a priest whom he has engaged, and that they are fellow-servants of the church for which the bishop acts merely as a superior agent and not as a principal. The learned justices united in saying that "the bishop was the priest's superior, and according to the established order of things in the economy of the church government, regulating the degrees of subordination and the methods of administration, it was the province of the bishop to designate the place for the priest to exercise his functions, and prescribe under certain limitations the rules and precepts for his guidance and control. But both were common servants of the church and the service of the priest was not a service for the bishop, nor was the bishop, in respect to the employment, a principal. * * * Men are constantly going into positions under appointment by superior agents, and where no liability for compensation rests on the employing agent, and the means of payment, if they come at all, are to come from another source. Cases of illustration are infinite. They abound in business operations, and marked instances may be seen in the great missionary enterprises which are carried on. No one supposes the existence of a legal liability on the part of the appointing agency."
In Methodist Church of Newark v. Clark (41 Mich. 730, 737) it was declared that "where there is no incorporation, those *Page 100 who deal with the church must trust for the performance of civil obligations to the honor and good faith of the members." (See, also, Hoffman's Ecclesiastical Law, 141, 145; Andrews' Church Law, 4, 57; Humphrey's Law of the Church, 2, 62.)
Without prolonging the discussion, we announce as our conclusion that the complaint does not set forth a cause of action, and that for this reason the third defense pleaded in the answer is sufficient, for when the complaint is defective the answer is not demurrable. (Baxter v. McDonnell, 154 N.Y. 432,436.) It is, therefore, our duty to reverse the judgments of the courts below and to overrule the demurrer to the third defense set up in the answer, with costs, and under the circumstances to answer the question certified, as to the insufficiency of said defense, in the negative.