This separate appeal was taken by a person not a party to the action, who was required, without notice to him, to surrender to plaintiff possession of No. 347 East Fourteenth street, which it is alleged is a separate parish of the Russian Orthodox Greek Catholic Church. This separate parish was incorporated in April last and it is asserted that the title then passed to the religious corporation then formed. The pastor, who is the appellant here and who came into this suit by motion to vacate that portion of the order which refers to his parish church, has been rector since 1919, and is now one of the trustees. Neither he, nor the religious corporation, nor the church, nor the congregation, nor any one representing them was a party to the suit or had any notice of the motion upon which the order making the aforesaid direction was made. The receiver has never had possession of the church or of the rector’s residence, and the rector has never occupied the premises “ under or by permission of the receiver.” The title, it is asserted by the appellant, is vested in the religious corporation. There is nowhere any allegation that the title to this property is in the plaintiff Kedrovsky. He does not allege it nor does his complaint demand a conveyance of the property to him but to a religious body called the Archbishop and Consistory Corporation.
There is nothing, therefore, in the papers warranting the order requiring the appellant, the rector of the parish church at 347 East Fourteenth street, to surrender the property to plaintiff.
As the appellant asserts, we hold that he cannot be deprived of the property which he claims is his benefice, his right to officiate as rector or pastor of the Church of the Assumption, with its incidents of residence, stipend, and whatever other emoluments may attach to it, without opportunity to present his claims as issues and support them by proof.
The order so far as appealed from denying the motion to vacate the order with respect to the church property at 347 East Four*126teenth street should be reversed, with ten dollars costs and disbursements to the appellant, and the motion granted, and the 3d paragraph of the principal order made May 3, 1926, should be struck out.
Clarke, P. J., Dowling, Finch and Martin, JJ., concur.
Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.