I am unable to concur in the prevailing opinion for the following reasons: When this case was before the Court of Appeals it held, as I read the opinion of Chief Judge Bartlett, that the action of the Presbytery of New York in decreeing a dissolution of the plaintiff extended only to its ecclesiastical or spiritual side; that, notwithstanding the fact that the legal entity of the plaintiff remained, the defendant, by virtue of its control in ecclesiastical matters, could insist that the property be used as it directed for denominational purposes. He said: “When, however, the superior governing body having authority over the ecclesiastical organization decrees its *444dissolution, there still remains the legal entity—that is to say, the trustees of the corporation are left in charge of its property, but without any spiritual body to maintain services or carry on religious work therein. The church as a legal corporate entity remains; the church in a spiritual sense is dissolved and gone. What becomes the duty of the trustees . under such circumstances ? They hold the property subject to , denominational uses, notwithstanding the dissolution of the spiritual church. The Presbytery cannot oust them from office by dissolving the spiritual church. It may, however, by virtue of its control in ecclesiastical matters, insist that the trustees continue to administer the property for denominational purposes, and if thfey fail to do so, undoubtedly it would have a standing in a court of equity to enforce action on the part of the trustees to that end.”
The respondent insists that it has a right to use the property for such religious services as it sees fit, freed from any control or dictation of the Presbytery. This, it seems to me, the Court of Appeals decided it could not do; that while it had the legal title, the use to which the property should be put was subject to the control of the Presbytery. The judgment appealed from determines that the plaintiff has “the record title in fee simple.” If it has such title, without limitation or qualification, then it may sell the property or use it in any way it desires.. Under the pleadings as amended the court can exercise its equitable powers and grant such decree as justice requires.
The judgment appealed from, therefore, as it seems to me, should in addition to the modification suggested by Mr. Justice Laugkhlin be further modified by stating that while the plaintiff has the legal title, it can only use or dispose of the property ' as the Presbytery may direct. An affirmance of the judgment without qualification would, in- effect, nullify or destroy the limitation "put upon plaintiff’s title by the Court of Appeals.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.