I concur as to the reversal of summary judgment but dissent as to that portion of the majority decision which dismisses the complaint.
The complaint alleged that on June 30, 1965, the Trustees of the Theological School of St. Lawrence University discontinued the operation of said theological school and since June 30, 1965, no theological school has been operated or maintained by the aforesaid Trustees at St. Lawrence University or elsewhere. It also appears from the face of the complaint that the plaintiff is a domestic corporation created pursuant to chapter 91 of the Laws of 1856 of the State of New York. That by chapter 123 of the Laws of 1868, the charter was amended to provide that vacancies in the Board of Trustees of the Theological School were to be filled by the New York State Convention of Universalists. This statute was repealed and the Legislature under chapter 40 of the Laws of 1910, conferred certain powers upon the defendants authorizing them to operate a theological school as a department of St. Lawrence University, with the power to sue and be sued under the name “ The Trustees of the Theological School of St. Lawrence University.”
In its complaint, the plaintiff demanded a declaratory judgment declaring that St. Lawrence University is the owner and entitled to the immediate possession of all the assets of the theological school heretofore operated and maintained as a department of St. Lawrence University, and directing the defendant Trustees to forthwith convey, transfer and deliver to St. Lawrence University, the plaintiff, all the assets of the theological school. Attached to the complaint are copies of the statutes hereinbefore referred to. Apparently upon the motion, plaintiff filed certain exhibits with the court and the defendant submitted a copy of its by-laws, which are attached to defendant’s brief.
The only attack made as to the sufficiency of the complaint is based upon the contention by the appellants that chapter 40 of the legislative act of 1910, chartered the theological school as a separate and distinct corporation, and thereby vested in the defendants as Trustees of the Theological School, absolute and complete ownership of all assets coming into their hands. This contention is based upon the fact that in the 1910 statute, the Legislature granted to the defendants certain powers which are necessarily held by a corporation. To determine the merits of this contention, it is necessary to examine the statute for the purpose of spelling out the intent of the Legislature.
*110The original charter enacted under chapter 91 of the Laws of 1856, was entitled “ An Act to incorporate the St. Lawrence University and Theological Seminary.” Both of the statutes, subsequently enacted, chapter 123 of the Laws of 1868 and chapter 40 of the Laws of 1910, are both characterized in their titles as acts to amend the prior act of 1856, entitled: “ An act to incorporate the St. Lawrence University and Theological Seminary.” The final statute of 1910, amending section 4 of the original act, gave the corporation power to establish a theological school and recites: “The corporation shall have
power to establish a theological school for the Christian denomination called Universalists, as a separate department of said university”. The corporation referred to must be the original corporation created by the act of 1856. This amended section after granting to the theological school the power to take and receive property for its maintenance and conduct, giving it the right to administer the same for the purpose of theological education, provided that the school should be administered by a separate board of nine Trustees to be elected by the New York State Convention of Universalists. Further provision is made that all separate property heretofore or hereafter received by said university for the uses, purposes and maintenance of theological education shall be turned over to the separate board of nine Trustees. That said separate board shall have the power to sue and be sued, to appoint a faculty and to change the same, to adopt by-laws, to prescribe the courses of study and to regulate the government and instruction of the students.
After granting these powers to the Trustees, the statute recites: “All powers not by this section conferred upon the said separate board of trustees of the theological school are vested in the trustees of the Saint Lawrence University, who are hereby empowered to fill any and all vacancies which may hereinafter occur in their body.” Certain corporate powers may be granted to an unincorporated society. (White v. Miller, 71 N. Y. 118; Feiner v. Reiss, 98 App. Div. 40.)
The only reasonable construction of the language in the 1910 statute is that it was not the intention of the Legislature and the institutions involved, that the theological school should be totally divorced from the parent institution to the extent that it had a complete and separate corporate identity. No new charter is granted to provide for an additional board of trustees, but the old one is amended. The corporation referred to in the act of 1910 is the original corporation. Any powers beyond those enumerated in the amendment are reserved to the original corporation.
*111It is my opinion that the statutory allegations set forth in the complaint constitute a sufficient basis for the court at Special Term to deny defendant’s motion to dismiss the complaint.
No affidavit was submitted by the plaintiff. Documents including resolutions of the Trustees of St. Lawrence University and a resolution by the Board of Regents were submitted by the plaintiff and the by-laws of the defendant Board of Trustees were submitted by the defendants.
Although the authenticity of these documents is not questioned, they were not submitted in evidentiary form. CPLR 3212 (subd. [b]) specifically provides that a motion for summary judgment shall be supported by affidavit. CPLR 3211 (subd. [e]), under which the court in this instance granted summary judgment, provides that upon the hearing of a motion, either party may submit any evidence that could properly be considered on a motion for summary judgment. By reason of the reference to the requirements of CPLR 3212, it is only reasonable to conclude that the Legislature intended that a plaintiff seeking summary judgment, following a motion made to dismiss a complaint under CPLR 3211, would at least be required to submit a sworn affidavit. (See, Cushman & Wakefield v. John David, Inc,, 25 A D 2d 133, 135; The Biannual Survey of New York Practice, Part V, 40 St. John’s L. Rev. 163 [1965]; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3211.49, 3212.05 [1965].)
Regardless of the requirements of this statute, it seems obvious that a court is never in a position to make a determination as to the existence or nonexistence of triable issues of fact without affidavits or sworn testimony presented on a hearing. The failure to adhere to these standards might well establish a haphazard and dangerous rule of practice.
The portion of the order granting summary judgment should be reversed, and the order denying defendant’s motion to dismiss the complaint should be affirmed as modified.
Gtbson, P. J., and Reynolds, J., concur with Heklihy, J. ; Staley, Jr., and Brink, JJ., concur in part and dissent in part, and vote to modify the order appealed from by deleting the provision thereof awarding summary judgment, and to affirm the order as so modified, in an opinion by Brink, J., in which Staley, Jr., J., concurs.
Judgment reversed, on the law and the facts, and motion to dismiss the complaint granted without prejudice, and without costs.