147 Misc. 88 | N.Y. Sup. Ct. | 1933
It appears that the defendant Avenue U Educational Center of the Anshe Shelon Congregation of Flatbush, Inc., is a religious corporation owning and conducting a synagogue at 2066 East Ninth street in the borough of Brooklyn. Between August 16, 1930, and September 17, 1930, the defendant Art Contracting Company, Inc., under an agreement with the above religious corporation, performed certain work, labor and services and furnished materials for the construction and installation of benches and pews in the synagogue. Subsequently the Art Contracting Company, Inc., brought an action against the religious corporation for moneys claimed to be due under the contract, and recovered a judgment against the latter in the sum of $756.70. Thereafter and on or about November 29, 1932, an execution was given to the sheriff of Kings county commanding him to satisfy the judgment out of any property of the religious corporation.
Plaintiffs claim to be the assignees of a certain bond and mortgage which is alleged to be a first hen on the premises owned by the synagogue " and all the lots, pieces, parcels of land, buildings and improvements thereon erected.” They instituted an action against the religious corporation, the Art Contracting Company, Inc., and the sheriff of Kings county to restrain them from detaching, severing, or levying an execution on the pews íd the synagogue. Plaintiffs contend that the effect of the sale by the sheriff of the pews would be to impair the security covered by their mortgage.
Counsel for plaintiff mortgagee contends that pews in a house of worship are intrinsically realty, and, therefore, subject to the hen of the mortgage. Counsel for the judgment creditor, on the other hand, contends that pews are personalty, and in consequence may be levied upon in spite of the opposition of the mortgagee.
The term “ pews” seems to have had its origin in the Dutch “ puye,” and to denote a seat inclosed in a religious edifice. In England, prior to the Reformation, all parishioners were entitled to use the body of the church, but the right to separate seats or pews did not exist, save possibly in the case of a few favored exceptions. Subsequently, however, the right thereto was given to parishioners by the bishops, and any matter regarding the same was adjudicated in the ecclesiastical courts. The owner of a pew under the English doctrine was vested with an easement. (Shaw v. Beveridge, 3 Hill, 26.) In this State, however, the nature of a pew is not clearly defined. Thus in one of the early cases it was stated that “ although
Such right, however, as might be raised by the pewholders against the congregation or against a party claiming under the congregation are immaterial upon the present motion since the pewholders are not parties. The issue herein is solely between the mortgagee of the synagogue property on the one hand, and the religious corporation and its judgment creditor on the other. The proposition must in consequence be determined not upon proof defining the nature of the property held by the pewholders. Rather, consideration must be given to the question as between the mortgagee and the judgment creditor claiming under the mortgagor, whether the pew seats upon their annexation to the building have, in fact, become realty.
In the determination of questions of this kind, when the same have arisen between grantor and grantee, or mortgagor and mortgagee, the controlling element upon which the courts predicate their conclusion is a consideration of the character and the purpose
The motion, therefore, will be denied.