follows. On the facts of this case there might have been rough ice formed by the freezing of slush, or there might have been iced snow, which would not render it unsafe for public travel as a matter of law, and which the jury might have found was not dangerous or unsafe, if it had been left to them as a question of fact. Moreover, the charge eliminated entirely the evidence on the part of the defendant to the effect that ashes, salt, sand, and sawdust were spread upon the surface of the ice and snow, and the court, doubtless inadvertently, in erect, instructed the jury as a matter of law that, if the ice or iced snow was there for the period specified, regardless of whether anything had been spread on the surface thereof to render it safe for travel, it was dangerous. Any argument that might be made to the effect that the error in charging the plaintiff's first request was corrected by the instruction given at the request of counsel for the defendant is, I think, met and overcome by the subsequent proceedings on the trial. Counsel for the city thereupon stated that the court had instructed the jury that the city was liable if it had actual or constructive notice, and he requested the court to instruct the jury that its liability did not attach until the condition of the sidewalk became dangerous, and that it was entitled to a reasonable time, after notice, actual or constructive, of the dangerous condition, to remedy it. The rule of law with respect to the city's liability was correctly stated in that request (Harrington v. City of Buffalo, supra; Kaiser v. City of New York, supra), and it had not been stated to the jury in the main charge. In answer to this request, the court, instead of charging it, as requested, erroneously stated the rule, in one important respect, to the jury as follows: "There must have been a danger in the first place, then actual or constructive notice, notice directly brought to an officer of the city, or a continuance of that danger for such a time as to put the city on notice. That is what is called constructive notice. I think I have made it clear, after that the city is to have a reasonable opportunity—that is, a fair opportunity-of removing it. If that condition existed for four or five days, as is charged by the plaintiff, I charge you, as a matter of law, that would create a dangerous condition; if it did so exist, there could be no liability at all. Plaintiff is resting squarely on the proposition that it did not exist." No exception was taken to this final instruction, but it will be observed that an exception had already been taken to like instructions given in charging plaintiff's first request. The misleading and erroneous part of this last statement made by the court is in again charging as a matter of law, in substance, that if the condition of the walk existed for four or five days that would create a dangerous condition. It was for the jury to find, and not for the court to rule as a matter of law, whether or not the walk was in a dangerous condition for public travel, and when it became so, for the uncontroverted evidence is that its condition was changing, and there is no evidence that any other pedestrian fell upon the walk.. It follows that the judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. (182 N.Y.S.) TRUSTEES OF PRESBYTERY OF NEW YORK v. WESTMINSTER PRESBYTERIAN CHURCH OF WEST TWENTY-THIRD ST. et al. (Supreme Court, Special Term, New York County. January 5, 1920.) Religious societies 25-Complaint to determine right to church property held insufficient to state a cause of action against individual defendant. Where, in response to a suggestion of the Court of Appeals in previous litigation between a presbytery and a church, the former filed a complaint seeking to compel the latter and its trustees to release and convey the legal title of church property to the presbytery, which made party an individual defendant, praying an adjudication as to the validity of judgments and liens against the church property, held that, where the complaint did not allege any interest possessed by such defendant, it was insufficient to state a cause of action as to him, not showing the necessity of making him a party, conceding even that his interest, if any, could be attacked before the presbytery acquired legal title. Action by the trustees of the Presbytery of New York against the Westminster Presbyterian Church of West Twenty-Third Street and others. On demurrer of defendant Richmond J. Reese. Demurrer sustained. Order affirmed, 192 App. Div. 163, 182 N. Y. Supp. 705. LEHMAN, J. The plaintiff herein has brought an action against the defendant Westminster Presbyterian Church of West TwentyThird Street and its trustees, to compel the defendant Westminster Presbyterian Church to release and convey the legal title to its church. property, either to this plaintiff or to a new church which it has organized as the successor of the defendant church corporation. The plaintiff also seeks an accounting from the Westminster Presbyterian Church, and a judgment declaring which of certain alleged judgments or liens against the Westminster Presbyterian Church are valid, and the amount thereof, and their respective priorities. The summons and complaint states that certain parties defendant, including the defendant Richmond J. Reese, claimed to have some interest in the aforesaid church property, but does not state the nature of such interests, or whether they are valid or invalid, or superior to or inferior to the claim of the plaintiff for the said property. The defendant Reese has demurred to the complaint, on the ground that there is a misjoinder of causes of action, that the complaint states no cause of action against any party, and that it contains no cause of action against this defendant. This action is apparently part of a long and unfortunate litigation between the Trustees of the Presbytery of New York and the Westminster Presbyterian Church. In a previous action between those parties, reported in 222 N. Y. 305, 118 N. E. 800, the Court of Appeals pointed out the difficulties of the situation and stated: "Under these circumstances it is possible that a court of equity would solve the situation by compelling the present corporation to convey title to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the real property to a corporation organized by the new congregation, for whose substantial benefit it is held, or by permitting the new and successor congregation to elect trustees to succeed those holding over, or by some other method bring together the legal title and beneficial interest of and in the real property." The court, however, declined on that appeal to express an opinion as to whether such a solution could be arrived at, and, if so, in what manner. The present action is apparently brought by the plaintiff in accordance with this suggestion. Concededly there is no precedent for the present action, but the facts upon which the action is based are also apparently without parallel, and it may well be that a court of equity can and should find some method of remedying the situation by using its well-established powers, even though such powers have never been called into play in a similar situation. Although the demurring defendant is in fact the attorney of record for the Westminster Presbyterian Church, the Westminster Presbyterian Church has not demurred to the complaint, and is not a party to the present motion; it would therefore technically not be bound by any decision herein, and it would be unfortunate, in my opinion, if the court were required to determine now whether the complaint sets forth any cause of action against it. For that reason I have assumed, without deciding the question, that the complaint does set forth a cause of action against the Westminster Presbyterian Church, and that in this action a court of equity will find some means of combining the legal and beneficial title of the church property. There can be no question but that the complaint fails to set forth any complete cause of action against the demurring defendant, and it asks for no relief against him individually, except, possibly, costs. It is quite evident, therefore, that as to him the complaint can be sustained only if he is a proper or necessary party for the complete determination of the points at issue between the principal parties. There is, however, nothing in the complaint to show the nature of the defendant's interest in or claim to the property which would enable a court to determine that the defendant's presence in court would serve any purpose. It is not shown that his claim is in any way adverse to that of the plaintiff, or inferior to it, or that a court of equity could or should attempt to declare this claim invalid, or to provide any method for its payment or satisfaction, if valid. The action is not one to quiet a cloud on title, nor is it analogous either to an action in partition or in foreclosure. In those forms of action a sale cannot be properly held until a court has determined what are the liens upon the property, but in the present case no sale is sought. If the plaintiff has any rights against this defendant, it should be required in the complaint to give notice to the defendant of the nature of its claim, so that the defendant can properly meet it at the trial. Moreover, even though the plaintiff may have some claim that the defendant's lien is collusive and may have some right of action, if it becomes the legal owner of the premises, to have such lien removed, yet at the present time it is not the legal owner of the premises, and there is grave doubt whether it could bring any action against the (182 N.Y.S.) defendant to wipe out his claim until title has been actually vested in it. The demurrer is therefore sustained, with costs, and with leave to the plaintiff to serve an amended complaint within 20 days upon notice of entry of order herein. (192 App. Div. 163) TRUSTEES OF PRESBYTERY OF NEW YORK v. WESTMINSTER PRESBYTERIAN CHURCH OF WEST TWENTY-THIRD ST. et al. (Supreme Court, Appellate Division, First Department. May 28, 1920.) 1. Equity 39 (1)—Court of equity finally determines rights of parties. A court of equity, having taken jurisdiction of the subject-matter of the action, will mold its relief so that the interest of all parties will be finally determined in the action. 2. Marshaling assets and securities rant relief. 11-Complaint held insufficient to war A complaint by a presbytery, alleging that trustees of a church permitted judgments and other liens to be filed against the church, that the church had no beneficial interest in the church property, and that the judgments or liens were not entered or permitted for the purpose of protecting the property held in trust, which, after alleging that individual defendants claimed an interest in the property, prayed an adjudication whether any such judgments or liens were valid, and a marshaling of assets, if any were valid, did not state sufficient facts to warrant relief of marshaling of assets. 3. Marshaling assets and securities 11-Complaint should allege facts. Where the complaint, after setting out that trustees of a church suffered and permitted judgments and liens to be filed against the church property, prayed relief and marshaling of assets, held, that it should state whether the individual defendants were judgment creditors or lienors, so that the facts upon which relief against them can be predicated will appear. 4. Pleading ~~8 (12) —Complaint should state facts showing whether liens were invalid as alleged. Complaint by a presbytery, alleging that the trustees of the church suffered and permitted judgments and liens to be filed against the church property, that the church had no beneficial interest, and numerous individual defendants were made parties, was insufficient because not stating the facts showing whether the judgments or liens were valid. Appeal from Special Term, New York County. Action by the Trustees of the Presbytery of New York against the Westminster Presbyterian Church of West Twenty-Third Street and others. From an order (182 N. Y. Supp. 703) sustaining a demurrer of the defendant Richmond J. Reese, with leave to serve amended complaint, plaintiff appeals. Affirmed. Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and MERRELL, JJ. Merrill, Rogers & Terry, of New York City (Wilson B. Brice, of New York City, of counsel), for appellant. Richmond J. Reese, of New York City, pro se. PAGE, J. This is an action in equity, brought pursuant to a suggestion of the Court of Appeals, contained in its opinion in a previous For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 182 N.Y.S.-45 litigation. Trustees of the Presbytery of New York v. Westminster Presbyterian Church, 222 N. Y. 305, 319, 118 N. E. 800. Mr. Justice Lehman has well said in his opinion at Special Term: "Concededly there is no precedent for the present action, but the facts upon which the action is based are also apparently without parallel, and it may well be that a court of equity can and should find some method of remedying the situation, by using its well-established powers, even though such powers have never been called into play in a similar situation." 182 N. Y. Supp. 703. [1, 2] A court of equity, having taken jurisdiction of the subjectmatter of the action, will mold its relief so that the interest of all parties will be finally determined in the action. To that end it is necessary that the facts that will enable it to accomplish the result should be properly pleaded. The complaint alleges, among other facts, that the trustees of the Westminster Church and said church have suffered and permitted judgments and other liens to be entered or filed against the church to the aggregate amount of many thousands of dollars; that the defendant church has no beneficial interest in the church property, the legal title to which stands in its name; and that said judgments or liens were not entered or suffered or permitted for the purpose of protecting and preserving the church property, held in trust. The following subdivision of the complaint alleges that certain individual defendants, among whom is the demurrant, claim to have some interest in the aforesaid property. The demand for judgment, so far as it relates to these allegations, is: "That the court shall adjudge whether any, and, if so, which, of said alleged judgments or liens are valid, and the amount thereof, and their respective priorities. That it shall marshal the assets applicable to their payment and provide for the payment thereof. * The facts are not alleged that would show the plaintiff entitled to this relief. [3] 1. It is not alleged that the individual defendants are the judgment creditors or the lienors whose judgments and liens have been suffered and permitted to be entered or filed against the church. If they are, that fact should be stated. If they are not, then the claim or interest they have should be stated, that the facts upon which relief against them can be predicated will appear, and such relief should be demanded. [4] 2. It is not sufficient to allege that these judgments or liens were not entered or suffered for the purpose of protecting or preserving the church property. The facts should be stated tending to show. that they were not binding or legal obligations; facts that would show that a court of equity would have power to adjudicate upon their validity. As the complaint now stands, there is no judgment asked against the individual defendants, except for costs, and no facts stated that would show that they were necessary or proper parties to the litigation. The amended complaint to be served pursuant to the order should state the material facts that will enable the court, at this time, to end the unfortunate litigation in which these parties have been indulging for years, and determine every justiciable matter that can arise with respect to this church and its property. |
