| N.Y. App. Div. | Mar 4, 1927
The plaintiff, an unincorporated association, sues to restrain the defendant membership corporation from executing a threat to deprive the plaintiff of the use of the church property and to have a declaration by equity judgment of the plaintiff’s rights to enjoy such use.
Legal title to the church is in the defendant. The contract to purchase it was made by the plaintiff. It was advised that for technical legal reasons it was inexpedient to take the record title in the name of an unincorporated association. There is evidence tending to show that its officers thereupon caused the defendant corporation to be formed. Immediately upon its formation and upon the acquisition of title to the property, it executed a grant to the plaintiff of “ the exclusive right ” to the property “ to be used as a church for the worship of God, and such other religious and social purposes as the ” plaintiff “ may see fit to use the same.” The plaintiff was obligated therein to pay not only all current expenses of upkeep and administration, including interest, taxes and janitor service, but also all installments of principal on mortgages and cost of repairs. The defendant covenanted therein not to sell, mortgage or incumber the premises without the plaintiff’s consent and that it should have no pecuniary benefit by reason of any of the payments to be made by the plaintiff, that the said payments should not be considered as rent, and that the defendant should derive no income from the premises. The plaintiff, however, was forbidden to assign the grant or sublet the premises. To supplement this written proof, the plaintiff sought to elicit from various witnesses that the money paid to the seller of the property was that either of the plaintiff or of members of the plaintiff who contributed it for the benefit of the plaintiff. This proffered evidence was rejected and the complaint dismissed. The evidence was relevant to support the plaintiff’s contention that the defendant had but a naked legal title for plain
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.