This is an action in ejectment to recover the possession of the premises known as 208-210-212-214 West Twenty-third street, borough of Manhattan, New York, upon which is erected a church known as the Westminster Presbyterian Church of West Twenty-third Street and a rectory connected therewith, and for damages for the use and occupation of the property. The jury rendered a verdict of $55,000 for the loss of the use and occupation, but the trial court reduced it to $19,477.27, and the court having ruled as matter of law that the plaintiff was entitled to possession, the judgment from which the appeal is taken was entered on such ruling and on the verdict as thus reduced.
On the first trial of this action a verdict was directed in
*441favor of the plaintiff and on appeal this court, the presiding justice dissenting, reversed the judgment entered upon that verdict and granted a new trial. (Westminster Presbyterian Church v. Trustees of Presbytery, 142 App. Div. 855.) An appeal was taken from our decision but it was dismissed. (202 N. Y. 581.) On the second trial of the issues a verdict was directed in favor of the defendant on the authority of our decision on the first appeal,, and this court affirmed the judgment on the authority of our former decision. (152 App. Div. 949.) An appeal was then taken to the Court of Appeals and the judgment was reversed and a new trial granted. (211 N. Y. 214.)
A suit in equity was brought by the defendant herein against the plaintiff herein to enjoin the plaintiff in this action from selling or transferring the property of the Westminster Presbyterian Church of West Twenty-third Street and to compel it to transfer and convey the property to the plaintiff therein, and a demurrer to the complaint was interposed. On the trial of that issue the demurrer was sustained, and the plaintiff therein having failed to amend pursuant to leave granted by the interlocutory judgment, final judgment was entered dismissing the complaint. An appeal from that judgment was taken and heard by this court at the same time that the appeal in the ejectment action was first presented here, and we reversed the inteziocutozy and final judgments and gave the defendant leave to withdraw its demurrez’, and gave plaintiff leave to serve a supplemental complaint setting forth more fully the adjudications by thé supreme judicatory of the church with respect to the right of the plaintiff in the action to establish a new church in place of the church,. which had been dissolved, so far as it was within the jurisdiction of the church authorities to dissolve it, and with respect to the action of the church authorities in declaring the church extinct. The defendant in that action failed to avail itself of the leave granted to withdraw the demurrer and plead over and final judgment was entered in favor of the plaintiff thez*ein for the relief demanded. This court reversed that judgment and dismissed the complaint on the authority of the decision of the Court of Appeals in the *442ejectment action. (Trustees of Presbytery v. Westminster Presbyterian Church, 165 App. Div. 910.) We are informed by the briefs that an appeal from our decision in the equity action is now pending in the Court of Appeals. The last decision by this court in that action is stare decisis against appellant on the equitable defenses attempted to be interposed in this action. The issues in this action were again tried, with the result already stated, and the appeal now before the court is from the judgment entered after the third trial.
We do not deem it necessary to consider further the arguments made on behalf of the appellant upon which it claims the right to retain the possession of the premises, for the facts shown upon the last trial are not materially different from those in the record upon which the Court of Appeals on the former appeal herein held that since it was not competent for the Presbytery to dissolve the church corporation as a legal entity, the latter was entitled to possession.
The only question which has not been foreclosed by the decision of the Court of Appeals relates to the damages recoverable by the plaintiff. The views' of the members of the court are not in accord as to whether the Court of Appeals intended to hold that the plaintiff’s possession of the property is subject to thfe direction, supervision and control of the Presbytery with respect to the use thereof, or that plaintiff is entitled to manage and'control the property free from such direction, control and supervision, subject only to its legal duty to use the property for religious worship according to the rules and usages of the Presbyterian church with which before its dissolution as a spiritual body it had been connected and affiliated and to the • intervention of a court of equity to enforce compliance with its duty in that regard, and in the view we take of the case it is not necessary to decide that question, for it is perfectly clear that the Court of Appeals decided that the property must be administered in accordance with the denominational usages of the Presbyterian church, and the evidence is uncontroverted that notwithstanding the fact that the plaintiff was ousted from possession the property has at all times been administered for public religious worship in accordance with such usages. It is, therefore, not clear that plaintiff would *443be entitled on any theory to recover more than nominal damages for the withholding of the possession of the property from it and certainly not on the theory on which the case was tried. On the part of the defendant evidence was given tending to show that the property thus restricted with respect to its use was without rental value. The only damages attempted to be shown by the plaintiff relate to rental value. The evidence was given by a real estate agent who had had no experi- * ence in renting church property and had only known of a single arrangement between two congregations with respect to renting the use of a property for religious worship, and he gave no evidence with respect to a demand for the use of such property for such purpose in the locality in question. His testimony with respect to the rental value of the property was based on his opinion concerning the value of the property and consisted of an estimate of rental value on the theory of the unrestricted use of the property for either church or commercial purposes and with alterations necessary to render it available for Commercial uses. In view of the use to which the legal owner of the title was restricted it is manifest that the opinion of the expert has no probative. value.
It follows, therefore, that the judgment should be modified by reducing the recovery to six cents nominal damages, and as thus modified affirmed, without costs.
Ingraham, P. J., Scott and Dowling, JJ., concurred; McLaughlin, J., dissented.