(dissenting). This action involves a so-called proposed Basis of Union between the Congregational Christian Churches of the United States and the Evangelical and Reformed Church. Plaintiffs-appellants seek to prevent the proposed union, or, failing in that, ask for a declaratory judgment as warranted by the pleadings and admissions of the parties.
As of January 1, 1949, 54%, or 3,120, of a total of 5,715 Congregational Christian Churches in the United States voted favorably upon the proposal (72.77% of the churches voting gave their approval); 1,433 did not vote, and 1,162 churches voted “No”. Following such approval, defendant, General Council of the Congregational Christian Churches of the United States, deemed itself authorized to proceed with the proposals *168outlined in the so-called Basis of Union with Interpretations, on its behalf as well as on behalf of those who might become parties to it, although it was originally recommended that it do so if 75% of the churches voting approved.
While professing a desire to preserve scrupulously the free autonomy of the individual churches, “ all trust funds ” and “ the property rights of all bodies ”, the General Council nevertheless circulated an Analysis of the Basis of Union (under which a general merger of the corporate agencies and instrumentalities of both united churches is planned), in which it is stated that a church which votes against the Union “ would, naturally, give up its rights [emphasis in original] in * * * United Church ” organizations and agencies, 11 though, if it desired, it could continue to have such relationships with such bodies as would be possible to a church not being a member of the denomination ’ ’, whatever that may mean.
With this immediate background, and the historic setting of the Congregational Christian Churches of the United States over a period of upwards of three centuries, as outlined in the prevailing opinion, plaintiffs applied to the Supreme Court for a declaratory judgment setting forth the declarations which they desired, and for injunctive relief. Defendant in its answer asked for a dismissal of the complaint, or, in the alternative, for a declaratory judgment setting forth the declarations which it desired. After a lengthy trial, Special Term, in accordance with section 473 of the Civil Practice Act, which provides that said court ‘1 shall have power in any action * * * to declare rights and other legal relations on request for such declaration ’ entered a judgment embodying in large measure the very declarations which the parties asked for, and in addition thereto gave to plaintiffs broad and sweeping relief. The Appellate Division, though declaring in the prevailing opinion certain rights of the parties, reversed Special Term and dismissed the complaint, with costs against plaintiffs in the sum of upwards of $6,000.
While, in my opinion, many of the declaratory provisions in the Special Term judgment were clearly warranted, I agree that the entire relief granted was too broad, and that its restraining provisions were not warranted. I also agree that it erred in *169declaring that defendant had no power to proceed with or carryout the proposals called for in the Basis of Union. In my judgment, however, defendant may not in só doing impinge upon the rights of plaintiffs.
The Appellate Division, in reversing Special Term, held (1) that “ civil courts do not interfere with ecclesiastical matters in which temporal rights are not involved and (2) that as to plaintiffs’ “ control of their individual properties and funds ”, and “as to funds held under express trusts [which would include pension funds], there is no dispute between the parties ”. (3) “ As to other funds held by or under the control of the defendant ’ ’, it assumed to declare that plaintiffs had not shown any rights therein, but nevertheless held that “ there should have been no declaration of the rights of plaintiffs with respect to the funds and assets held by the corporate societies and agencies ” until the latter were brought before the court as parties. (4) Finally, it held that a “ declaratory judgment serves a legitimate purpose only ” when the parties affected are before the court; yet it failed to approve Special Term’s declaratory judgment even with respect to the very matters concerning which, as between themselves, both parties had asked for a declaration. (279 App. Div. 1074, 1075, 1076.)
We are all in accord that there is no ecclesiastical question in this case. The parties agree as to the independence and autonomy of the local Congregational Christian Church in all matters temporal and spiritual, and that the Association, through voluntary independent organizations, was devised for fellowship and co-operation, but without ecclesiastical authority. The local Congregational Church, unlike most other religious organizations, is subordinate to no higher earthly spiritual authority. The General Council is a voluntary unincorporated association, and concededly is without 1 ‘ power or authority to enter into or to make any contract or commitment of any kind binding upon plaintiff. Church ”.
The Appellate Division has properly held that plaintiffs may not be disturbed with respect to (1) ownership and control of their own properties, nor (2) as to funds held under express trusts, which include pension funds.
*170As to any unexpended funds contributed by plaintiffs to defendant or to the Corporation for the G-eneral Council or to the Congregational Board of Ministerial Belief, defendant agreed at the close of the trial that such moneys may be used only for the purposes authorized by its charter or constitution and by-laws as they exist at the date of the trial court’s decree.
We also agree that there should have been no declaration either by Special Term or the Appellate Division as to the rights of plaintiffs with respect to the funds and assets held by the various corporate societies and agencies until the latter were brought before the court as parties. As to such funds, which we are told amount to upwards of $60,000,000, plaintiffs may well have rights in the way of continued service and otherwise, by reason of their contribution of many tens of thousands of dollars over the years. Whatever these rights — which may only be determined when the necessary parties are before the court — they may not be stripped from plaintiffs simply because they choose to remain independent Congregational Churches. Grood faith and Christian understanding on both sides should solve such problems as they actually arise; should such understanding not come to pass, plaintiffs may then urge whatever rights they claim to have, and which they assert are impinged upon, in an appropriate action with all necessary parties before the court. Because we cannot pass upon them at this time is not to say that they have no rights.
For these reasons, I am of the opinion that the Appellate Division erred in dismissing the complaint. This has been a long trial. As a result of the institution of this action, and in the course of the trial, concessions were made resolving many of the issues between the parties. To preserve these concessions and requested declarations — as Special Term has — is a function of a declaratory judgment, and clearly within the scope of Special Term’s powers. The Appellate Division recognized in its opinion that a declaratory judgment serves a legitimate purpose when the persons affected are before the court. Here plaintiffs and defendant are before the court, and a declaratory judgment as to their respective rights, between themselves, is clearly authorized. Plaintiffs should not have been denied any relief whatsoever, but those provisions of the Special Term *171judgment which both the Appellate Division and the members of this court recognize as proper should have been permitted to stand.
The judgment of the Appellate Division should be reversed and the judgment of Special Term modified as follows:
The first two ordering paragraphs should be stricken.
As to the third ordering paragraph, subdivisions 1 and 2 should be stricken and the following substituted therefor: ‘4 The defendant, The General Council of the Congregational Christian Churches of the United States, has the power and authority to proceed with and carry out the proposals in the Basis of Union for itself and for those who may become parties to it, without the approval of the plaintiffs or those churches for whose benefit the plaintiffs claim to be suing.”
In the same third ordering paragraph, subdivisions 3, 4, 5, 6 and 7 should be allowed to remain, for this relief was asked for in part by plaintiffs in paragraph 3 of their prayer for relief, and consented to altogether by defendant in paragraphs CII-CV of its prayer for relief.
Subdivision 8 of the third ordering paragraph should be stricken.
A further subdivision should be added to said third ordering paragraph embodying paragraph CVI of defendant’s prayer for relief.
An additional declaration should also be added to conform to defendant’s motion made at the close of the trial to add paragraph CVTI(a) to its prayer for relief, reading as follows: “ Declaring that any unexpended funds contributed by the plaintiff to the defendant or to the Corporation for the General Council or to the Congregational Board of Ministerial Relief, may be used only for the purposes authorized by its Charter or Constitution and By-laws as they exist at the date of this Court’s decree.”
The fourth ordering paragraph granting injunctive relief should be stricken in its entirety.
Subdivisions 1 and 2 of the fifth ordering paragraph should be deleted; subdivision 3 thereof may stand.
The sixth, and last, ordering paragraph should be modified by substituting for the words “ the plaintiffs ” the words “ either Party”. ' . L ■' ¡ t A' .'.i
*172No costs should be awarded here inasmuch as both parties asked for a declaratory judgment.
Lewis, Ch. J., Desmond and Fuld, JJ., concur with Dye, J.; Fboessel, J., dissents in opinion in which Conway, J., concurs.
Judgment affirmed. [See 306 N. Y. 751, 792, 851.]