(dissenting). We dissent. Our authority is the clear, positive and binding pronouncement, by the United States Supreme Court, in its opinion in this very case, of the law of this identical controversy (Kedroff v. St. Nicholas Cathedral, 344 U. S. 94). The sole question in the litigation was, and is, this: May intervening defendant Fedchenkoff, holder of an admittedly valid appointment by the Patriarch of Moscow, world head of the Russian Orthodox Church, as archbishop of the North American Diocese, be prevented by the State of New York from occupying as his see church the archdiocesan cathedral in New York City? This court, when the case was here before (St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1) barred the archbishop from the cathedral, and decreed possession thereof to the Russian church in America, a separatist movement. This court’s reliance for that holding was on article 5-C of the New York Religious Corporations Law, judicially construed as transferring the cathedral from control by the mother church in Russia, to control by the ‘1 American Church ”, on a supposed legislative determination that the Moscow Patriarchate was a mere instrumentality of the Communist regime in the U. S. S. R., and so incapable of carrying out the religious trust. But the United States Supreme Court, reaffirming Watson v. Jones (13 Wall. [U. S.] 679) held flatly that the Watson rule gave constitutional protection, under the First Amendment, to the filling of ecclesiastical offices by the appointive power of the church (see Gonsalez v. Archbishop of Manila, 280 U. S. 1).
The Watson v. Jones (supra) formulation of a fundamental American doctrine of religious freedom (old in New York, see Connitt v. Reformed Prot. Dutch Church of New Prospect, 54 N. Y. 551) is simply this: that, as to a subordinate body of a general church organization, the civil courts must accept, as finally binding, the decisions of the supreme judicatory of the general organization in all matters of discipline or belief, or ecclesiastical custom or law. Since, said *56the Supreme Court in its opinion in our case, the Russian Orthodox Church is hierarchical in government, the power to appoint, and the choice of, its archbishops is a matter of ecclesiastical government, as is the right of that appointee, as such, to occupy the cathedral. Therefore, the question sought to be litigated in this suit was one with which the civil courts had nothing whatever to do. Any State interference with such choice of a prelate, or such occupancy, would be violative of freedom of religion under the Federal Constitution. The Supreme Court, therefore, reversing this court’s reversal of the lower New York courts, sent the case back to us for further proceedings “ not in contravention of ” (344 U. S., p. 121) the Supreme Court’s opinion. Since the sole purpose of the suit was to obtain an adjudication, contrary to that of the Orthodox Church’s highest judicatory, on a pure question of ecclesiastical government and discipline, the only possible consistent course for this court to take, after that reversal, was to order the complaint dismissed. Instead, action most inconsistent is being ordered, in the form of a trial as to the motivations of the Patriarch of Moscow, and as to the qualifications of Archbishop Fedchenkoff. The ordering or holding of such a trial, or any determination therein, either way, on either of the two questions, has been banned in advance, we say, by the Supreme Court, as an unconstitutional intrusion by the State of New York into the inner affairs of a church. Actually, the interference in this, its second form, is more to be condemned than was the first attempt. Our first decision here was based on a New York statute and, perhaps, there was some duty in the New York courts to try to salvage that statute. Yet, now that the statute has been stricken down as unconstitutional, we are licensing a trial in a civil court to find a fact which, if found, could be no basis for any constitutionally valid judgment.
If unconstitutionality under the First Amendment were not so plain here, we would state more fully the impropriety, as a matter of New York practice, of ordering a new trial, on this record. Here, we are told, there are two fact issues to be tried: as to the domination of the Patriarch by the Kremlin, and as to the fitness of his archiepiscopal appointee. But, at the first trial, plaintiff frankly conceded in open court that it could *57never hope to prove the “ domination ” by common-law evidence, and asked, instead, that judicial notice be taken. After this court gave plaintiff judgment on an 'assumption that the Legislature had acted on knowledge of that supposed fact of patriarchal subjection to the communists, the United States Supreme Court said that, even if such were the fact, State action based thereon could not be valid, in an ecclesiastical matter. So, the trial we are ordering, insofar as it concerns the workings of the Patriarch’s mind and the purity of his motives, is unjustified by the record, and, by concession, foreordained to futility. As to any question of the fitness of the intervening defendant for the archbishopric, no such contention was made at the first trial.
Pressed on us now as some sort of authority for this new trial order are Kedrovsky v. Rojdesvensky (242 N. Y. 547) and Kedrovsky v. Russian Catholic Church (249 N. Y. 75). If either of those decisions deny the right of the Patriarch of Moscow to appoint the archbishop of New York, then they were overruled on November 24, 1952 (344 U. S. 94, supra). The long and short of it is that the order which this court now hands down violates not only the Supreme Court’s mandate, and the First Amendment, but long and thoroughly settled New York law (Jarvis v. Hatheway, 3 Johns. 180 [1808]; Dieffendorf v. Reformed Calvinist Church, 20 Johns. 12 [1822]; Dutch Church in Albany v. Bradford, 8 Cow. 457 [1826]; Connitt v. Reformed Prot. Dutch Church of New Prospect, 54 N. Y. 551 [1874], supra). And those old cases of ours were in the direct line of descent from fundamental American thought much older than the Constitution itself (vide, Roger Williams in the seventeenth century: “ The government of the civill Magistrate extendeth no further than over the bodies and goods of their subjects, not over their saules, and therefore they may not undertake to give Lawes unto the saules and consciences of men ” quoted in Rossiter’s Seedtime of the Republic [1953], p. 197).
The complaint should be dismissed.
Lewis, Ch. J., Dye and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Fuld, J., concurs; Van Voorhis, J., taking no part.
Motion granted, etc. [See 306 N. Y. 572.]