author: Robertson, J.

text:
    Edward Haslam, Plaintiff and Respondent, v. The Adams Express Company, Defendants and Appellants.
    1. Uncontradicted evidence, that an incorporated Express Company engaged in the transportation of goods, had done business for years as a common carrier with all that called, establishes prima facie that such Company is a common carrier.
    2. “ What is the usual custom of Express Companies, in delivering packages in this city,” ? (New York,) put to the driver of the wagon of an Express Company, is inadmissible when not preceded by proof that there is a custom, and that he is competent to state what it is; when such question is put to elicit evidence that a delivery of goods, carried for a person doing business in an upper story of a building, may be made by leaving them at the foot of the stairs on the first floor, and notifying him thereof.
    3. An instruction to the jury, that if the plaintiff personally or by his agent acquiesced in such mode of delivery, or gave the defendants to understand by a customary course of business or otherwise, that he would consider such a mode of deposit a delivery; or if the plaintiff’s agent so acted as to induce the defendants to believe that he accepted the goods at the place where they were left, the defendants were not liable, but that if no such delivery had been made or accepted, they were liable: Held, to be as favorable for the defendants upon the evidence, as the rules of law warranted.
    (Before Bosworth, Ch. J., and Robertson, J.)
    Heard, February 20;
    decided, March 10, 1860.

      Ah appeal by the defendants from a judgment, and from an order denying a motion made by them for a new trial. The action was tried before Mr. Justice Pierrepoht and a jury, on the 27th of June, 1859.
    The complaint states, that the defendants are a - Company incorporated1 and established as common carriers; that as such, they received on the 6th of July, 1857, at Boston, a box of goods the property of the plaintiff of the value óf $91.59, to be carried from Boston and delivered to the plaintiff at ¡Eew York; a failure to deliver the goods and prays judgment for such value with'interest.
    The answer, first., admits that the defendants. are an incorporated Company, but denies that-they are" common carriers; second, it admits that on the 6th of July, 1857, they received at Boston a box or package of the plaintiff, to be carried by them as an Express Company and not otherwise, and to be delivered to the plaintiff at Eew York, and denies any knowledge of the contents of the box, or of its value; third, it alleges the carrying and safe delivery of the said box, and denies all other allegations of the complaint.
    The plaintiff gave evidence of the delivery of a box with such contents as the complaint specifies, to Pratt & Curtis, express-men at Chelsea, near Boston, to be delivered by them to the de fendants, to be carried by the latter and delivered to the plaintiff at 181 Broadway, Eew York, and that they “do business as common carriers with all that call.”

      F. Haslam, testified, that “they were to carry the package to Edward Haslam, the plaintiff, at 181 Broadway.” * * “ The box was to be delivered at 181. Broadway. Eothing was said about the charge for carrying the box. Ten years ago I did business with the defendants. ' I have done no business with them since the box was lost.” The plaintiff" then rested; and the defendants moved to dismiss the complaint, which motion was denied, and they excepted.
    The defendants then called Harvey Marsh, a driver of one of their wagons, and gave evidence tending to show, "that, in July, 1857, he took a box for the plaintiff and left it inside of the door at the foot of the stairs on the ground floor, and then went to the plaintiff’s place of business in the 4th story, -and the plaintiff not being in, told a boy he found there, “1 have got a box at the foot of the stairs by Express,” and that he must take care of it. That he then went down, saw the box standing where he had placed it, and then drove off.

      Alonzo Lockwood, a driver of a wagon for the defendants, testified, that he went to the plaintiff the same day, to get a receipt for the delivery of the box, and the plaintiff said he had not received any. He was asked this question: “What is the usual custom of Express Companies, in delivering packages in this city?” On objection the question was excluded, and the defendants excepted.

      John JBoey, the manager of the defendants’ freight department was asked, and without objection answered these questions. “Are you acquainted with the customary mode of delivering boxes of this size, when the place of delivery is not on the first floor? A. I am. Q. Is there a general custom in respect to the delivery of packages? A. There is. It is our invariable custom to leave packages of this size down stairs.”

      JErastus Littlefield, of Kinsley & Company’s Express, testified, “ I know that there is a custom in this city among Express Companies as to delivering boxes, &c. When the box is bulky or weighty, it is the custom to leave them down stairs, and notify the parties. In such case, we never take them up stairs.”
    The plaintiff then testified, that neither the defendants, nor Kinsley & Company’s Express had ever left any thing for him down stairs, that the boy alluded to was an office boy, about 14 years old, and had no authority to receive packages; that he never heard of a custom to deliver boxes by leaving them down stairs; that the defendants never claimed “ that any such custom as this, as regards delivery to him, existed.” That he had always received boxes of the size mentioned, up stairs at his room.

      Alfred Gr. Badger, testified, that he occupied the same room with the plaintiff, that he received packages almost daily from the defendants. “ They ordinarily deliver them in my room. They always so deliver them. All packages to the plaintiff were usually delivered in the room.” No other witnesses were examined.
    When the testimony was closed, the defendants’ counsel renewed the motion to dismiss the complaint, which motion was denied, and the defendants thereupon duly excepted.

      The counsel for the defendants then requested the Judge to charge the jury —
    That if they should find from the evidence that the defendants had delivered the box to the plaintiff in the usual and customary mode practised by expressmen in the city of New York, that their verdict should be-for the defendants.
    The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the defendants had delivered the box in the mode sanctioned by previous transactions of similar character with the plaintiff, that their verdict should be for the defendants.
    The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the defendants had caused the box to be deposited in a secure place within the building, where the plaintiff kept his office, and had caused immediate notice thereof to be given to the person in charge of the plaintiff’s office during business hours, and while he was absent, and that person’s conduct led the defendants to believe that he was satisfied with such delivery, and would attend to the box, that their verdict should be for the defendants.
    The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the person in charge of the plaintiff’s office had not used diligence in taking charge of the box after notice, and that but for such neglect the loss would not have occurred, that their verdict should be for the defendants.
    The Judge declined to charge in the language of the requests, but charged the jury as follows, to which exception was duly taken by defendants:
    That the important question in the case was, whether the Company had made a legal delivery of the goods. That depositing a light package at the street-door of the building, in the upper part of which the plaintiff’s office was situated, was not an actual delivery to the plaintiff. But, that if the jury were satisfied from the evidence that the plaintiff personally, or by his lawful agent, acquiesced in such mode of delivery, or ever gave the defendants to understand by a customary course of business or otherwise, that he would consider such mode of deposit a delivery, then the defendants were- not liable.

      That if the boy had authority from the plaintiff to act as his agent in this matter, and as such agent accepted the delivery as made, or being the plaintiff’s agent, so acted as to induce the defendants to believe that he accepted the goods at the place where they were left, then sufficient delivery was made out, and the defendants were not liable. But that a deposit of a light package on the pavement of the street was not of itself a delivery in a case like this, unless in some manner induced or accepted by the plaintiff or his agent; and that if the jury did not find from the evidence that any delivery had been made or accepted as above mentioned, then the defendants were liable.
    The defendants’ counsel thereupon excepted to the whole of such charge, so far as the same was not in accordance with the defendants’ request to charge.
    The jury found a verdict for the plaintiff for $104.41.
    The defendants moved for a new trial on a case, and the motion was denied. From the order denying it, and from the judgment entered on the verdict, the present appeal is taken.

      E. H. Owen, for the appellants.
    I. The Judge, at the trial, erred in denying the several motions to dismiss the complaint.
    There is no evidence that the box spoken of by the defendants’ witnesses was the one which the plaintiff had given to the Chelsea expressman to be delivered to them; nor could it be legally inferred from the evidence that it was the same.
    There was no sufficient evidence that the defendants were common carriers, or that they were liable as such.
    II. The Judge also erred in excluding the evidence offered in regard to the usage and custom among expressmen as to the mode of delivery.
    Although evidence upon the subject was allowed to be given at a subsequent stage of the cause, yet that did not cure the error in excluding what had been previously offered.
    The witness, by whom it was proposed to prove such usage, may have, and for aught that appears, had, in fact, left the Court before the subsequent ruling upon the subject. He was not recalled; and by' such erroneous ruling, the defendants were, in. fact, deprived of the benefit of this testimony upon the subject. (Foster v. Thompson, 5 Gray, [Mass.,] 453.)
    III. The Judge.'also erred:
    1. In refusing to, charge the jury .that if they should find that the box had been delivered “in the usual and.customary way, practised by expressmen in the city of Few .York, that they should render a verdict for the defendants.”
    2. In his refusing to charge the jury that if they found “ that the person in charge of the plaintiff’s office had not used diligence in taking charge of the box, after notice, and that but for such neglect the loss would not have occurred, the verdict should be for the defendants.”
    IY. The Judge also erred in his charge to the jury. It tended to mislead the jury, and to draw their minds away from the true issues.
    1. There was error in his statement to them that depositing a light package at the street-door of the building, in the upper part of which the plaintiff’s office was situated, was not an actual delivery to the plaintiff.
    Admitting this to be so, as matter of law, still it was not borne out by the facts or the evidence, and it was, therefore an error; moreover, the issue was not as to an actual delivery, but whether or not there had been such a delivery as in law discharged the defendants from further responsibility. It was error to designate the box as a light package, or as having been deposited at the street door, for it was in fact not so deposited, and was not within the ordinary meaning of that term, at the door or upon the sidewalk. Such remarks were calculated to mislead the minds of the jury.
    2. There was error also in the charge that “a deposit of a light package on the pavement of the street was not of itself a delivery in a case like this, unless in some manner induced or accepted by plaintiff, or by his agent.”
    As matter of law, it may be conceded that such a deposit of a light package, would not be a sufficient delivery, but the charge was not borne out either by the facts or evidence in the case, as the box was not a light package, nor was it left upon the pavement. (McIntyre v. Kline, 30 Miss., [1 George,] 361.) The judgment of the Special Term should be reversed, and a new trial ordered.

      Charles W. Prentiss, for respondents.
    I. The defendant was proved to be a common carrier.
    Ho evidence was offered by defendant to the contrary.
    This company has been held to be a common carrier in Newstadt v. Adams and others, (5 Duer, 43,) Stoddard v. Long Island Railroad Company. (5 Sand., 180.)
    Other express companies are held common carriers. (Russell v. Livingston, 19 Barb., 346; also by General Term, this district, Sept., 1858, Sherman v. Wells; Teall v. Sears, 9 Barb., 317; and generally, Redfield on Railways, 240, 249; 1, Angel on Carriers, §§ 68, 69, 70.)
    H. The box was received by the defendant to carry, as claimed by plaintiff.
    This is admitted by the pleadings, and is proved by defendant’s own testimony.
    HI. The only question, then, is whether it was delivered to the plaintiff according to contract.
    I. Defendant having agreed to deliver it to the plaintiff, is not at liberty to show by custom a delivery not to the plaintiff. (Hinton v. Locke, 5 Hill, 437.)
    2. If he is, the custom must be uniform, general, and of such permanency, that the Court or jury can say it should have forced itself upon the plaintiff’s notice.
    It should be known to the plaintiff. (Cole v. Goodwin, 19 Wend., 251; Gibson v. Culver, 17 id., 305.)
    3. Ho such custom was shown, but the contrary.
    4. If it is claimed defendant delivered it to an agent of plaintiff, defendant must clearly establish the agency. (Angell on Carriers, §§ 323, 324, 432, 454; Ostrander v. Brown, 15 John., 39.)
    5. The nature of the express business being a carrying of parcels, demands a personal delivery, and the attempt to show the alleged custom was merely showing a constant effort by defendant to evade its just responsibilities. (Redfield on Railways, p. 240.)
    6. To sustain the ancient vigor of the common law as to common carriers, is the settled and sound policy of the law of this state. (Hollister v. Nowlen, 19 Wend., 234.)

      IV. The exception to the charge and to the refusal to charge is too general to be available. (Hunt v. Maybee, 3 Seld., 266; Jones v. Osgood, 2 id., 235.)
    V. The charge is correct, and the refusal to charge, likewise.
    VI. The question excluded was improper.
    1. It was too general.
    2. Presupposed such a custom to exist.
    3. The exception, if any exists, was obviated by the proper question being allowed immediately after; and the whole trial went upon this basis.
   Robertson, J.

The motion to dismiss the complaint in this case was based upon two grounds, viz.: First, that the plaintiff had failed to prove that the defendants were common carriers; and, Secondly, that he had not proved a delivery of the goods described in the complaint to the defendants.

The defendants were an Express Company incorporated by the State of Massachusetts, and were engaged in the business of carrying goods between the cities of Boston and New York; a witness for the plaintiff testifies that he had done business with the defendants for about nine or ten years, and “ they did business as common carriers with all that called.” This was uncontradicted, and was amply sufficient to go to the jury on the question of their occupation. The evidence upon the subject of delivery consisted of the testimony of a witness who described the box delivered and its size; and also of a wagon driver of the defendants who testified to carrying a box about the time the one in question should have arrived, and leaving it at the front door of the building where the plaintiff had his office; the answer of the defendants admits the receipt of a box to be carried by them as expressmen, and avers its delivery to the plaintiff. This appears to be sufficient to be left to the jury as evidence of its original delivery to the defendants.

A question, however, was made upon the presentation of the case to the jury, as to the delivery of the goods by the defendants, and the rule by which such delivery should be governed, which requires a little more examination. The plaintiff occupied the fourth floor in the rear of a building on Broadway in the city; the driver who brought the box in a wagon took it out and placed it within the outside door of such building upon a platform which reached to the stairs; he then went up stairs to the plaintiff’s office and notified a boy therein, about fourteen years of age, that he had “ got a box at the foot of the stairs by express, and that he must take care of it;” he then came down found the box where he placed it and drove off. The boy was not authorized to receive packages for the plaintiff, and the box weighed fifty or sixty pounds, as testified to by the driver. This being clearly not a delivery to the plaintiff by any general principle of law, the defendants sought to establish a custom among expressmen to make such mode of deposit a delivery. For this purpose, a question was put to a driver of the defendants, as to “ what was the usual custom of Express Companies in delivering packages in this city,” which was ruled out, and I think properly for various reasons; the witness was not established to be such an expert as to entitle him to speak of a usage; the question was technically irregular, as no custom had been proved to exist," and it was confined to the custom among the Companies, and not extended to those who dealt with them. The question was put in a more proper shape to establish a usage to other witnesses, and answered. Two witnesses testified to the invariable custom to leave boxes which are weighty or bulky down stairs, and notify a party, whose office is up stairs, while another witness and the plaintiff testified that neither of the Companies, of which such witnesses were agents, ever left boxes of the size of the one in question down stairs, but always delivered them personally to the party who was to receive them. It is very plain that a custom, so ill defined as this, should not be allowed to trench upon settled rules of law, for the weight or the bulk of the articles remains entirely uncertain; besides, it does not appear that this usage was well known to all persons dealing with such Companies, (Cole v. Goodwin, 19 Wend., 251; Gibson v. Culver, 17 id., 305,) nor was its origin, or continuance for any length of time shown. Nor does it seem to me, that such a usage could ever begin to establish a legal custom; the delivery of goods at a tavern or known stopping place of a carrier where they are always in charge of some one, as in Gibson v. Culver, (17 Wend., 305,) or on a wharf after giving notice and allowing a reasonable time for a consignee to take possession is entirely different from abandoning parcels intrusted to a common carrier in an exposed place, and notifying the owners that they are so abandoned. It would in all cases be a very, doubtful, chance, whether the owner in a fourth story or a marauder in the street would first reach the prize, even supposing, the owner or his representative ready at all times to rush swiftly down stairs and able to carry the package up which was too heavy for the driver; and indeed the box in this case does not seem to have been one which the only person notified (a boy of fourteen years of age) could have readily transported to the fourth story. The law is exceedingly jealous of. any innovation upon the responsibility of common, carriers, even by express .contract, much more by usages, (Hollister v. Nowlan, 19 Wend., 234,) and the express business most of all requires that the. most uniform and constant dereliction of duty. however successful, should not enable express carriers to .evade liability for a. lost parcel committed to their care, (Redfield on Railways, 240,) by getting up a usage.

Even, however,..if the evidence in this case had . tended to establish a legal custom binding upon all persons engaged in the business .of sending or receiving parcels.. by. express,-. I do not think there was any request to ¡charge, whose refusal should maleé the.verdict erroneous ?. The first request as to “ usual and customary modes of expressmen.” was wrong, because it did not require the assent of those sending by express, or even their knowledge of such a practice. The' second request, as .to the mode sanctioned by previous transactions between the parties was not warranted by any evidence, 'the only' testimony given on the subject, disproving any. such mode as that claimed; besides which, such request was substantially .complied with. The third and fourth requests in reference to acceptance by the plaintiff’s agent, were unjustifiable in any other form than that' in which the third was substantially charged, rendering the fourth unnecessary; the conduct constituting an acceptance of the delivery made, should not only'have been such as actually led the defendants to believe such acceptance had been made, but such as would be adapted to lead any one so to believe; but even the former was charged as requested.

I can find no fault in any rulings at the trial or the charge of the Judge before whom it was tried, and am therefore of opinion the judgment should be sustained.

Bosworth, Ch. J., concurred in the conclusions of Robertson, J.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court —Woodruff, J.

license: Public Domain

text:
    Henry C. Bowen and Theodore McNamee, Plaintiffs and Respondents, v. The Trustees of the Irish Presbyterian Congregation in the City of New York, Defendants and Appellants.
    1. In an action brought against a Religious Corporation, to compel the specific performance of an agreement alleged to have been executed by the defendants under their corporate seal and signed by the proper officers, if those allegations are not otherwise denied than by an averment that in executing the agreement, the officers acted without lawful authority, the burden of showing that there was some defect of power or other invalidity in the execution of the agreement is upon the defendants; and in default of any evidence on the subject other than the production of the agreement on the trial, with the execution thereof duly proved before a commissioner of deeds, in a manner authorizing the same to be read in evidence, it will be held the agreement of the defendants.
    2. So of a petition by the defendants to the Supreme Court upon which an order is admitted to have been made in that Court authorizing them to sell and convey in pursuance of such contract.
    3. The production of an instrument admitted to be executed under the corporate seal and signed by the proper officers, is prima facie evidence of due execution by the defendants, and raises a presumption that it was executed by lawful authority of the Corporation. This is as true of a Religious Corporation as of any other.
    4. In an action against a Religious Corporation to compel the specific performance of their agreement to sell and convey their real estate, which sale and conveyance have been duly authorized by an order of the Supreme Court obtained on the petition of the Corporation, it is no defense that since such contract was made, a suit has been commenced in that Court by three of the congregation against such Corporation, and an injunction pendente lite has been granted by that Court restraining the Corporation from conveying the premises, the plaintiffs in this Court not being parties to such suit.

      5. A party to a contract cannot excuse its non-performance by showing that a claim has been set up, by one not a party to the suit, upon which he has been enjoined.
    6. A Eeligious Corporation has power to make an executory contract to sell real estate, expressly subject to the action of the Supreme Court, to be conveyed by deed by the authority of that Court to be first obtained, and if an order of that Court on due petition be obtained, authorizing a sale and conveyance pursuant to the contract laid before that Court for that purpose, the contract will be valid and binding on the Corporation without further ratification by them. It is not essential that the order authorizing the sale be obtained before an executory agreement is made. Its confirmation by that Court is sufficient.
    7. In making a sale of its real estate such a Corporation does not act in a ministerial capacity, merely executing the mandate of .the Supreme Court. The fee is vested in the Corporation and not in the Trustees as Trustees, and the only restraint upon the power of the Corporation to sell and convey under the statutes of Hew York relating to Eeligious Corporations, is the indispensable condition that an order of the Supreme Court be obtained authorizing the sale and conveyance. Such an order is permissive only, and not mandatory.
    8. Whether when that Court has obtained jurisdiction by a petition for such an order, the Supreme Court has power to compel a sale, upon terms to which the Corporation does not assent or when the Corporation has determined not to sell, and to direct a sale to be made by the Sheriff or other officer of the Court? Doubted.
    9. The mere order authorizing the sale does not compel the Corporation to sell.
    10. It is not only unobjectionable but in general the preferable mode of selling, first to negotiate a sale, agree upon the terms and then lay the agreement before the Supreme Court, and by the order obtain an approval thereof and an authority to convey and a direction for the investment of the proceeds as the statute requires.
    11. The Superior Court of the city of Hew York has general equity jurisdiction, and may therefore entertain an action to compel the specific performance of a contract by a Eeligious Corporation, for the sale of its real estate.
    12. Although the power to adjudge the specific performance of a contract is in some sense discretionary, yet when the plaintiff is seeking relieij to which by well settled practice he is clearly entitled, such relief may not be capriciously withhéld.
    13. After the trial of the action and an order had been made adjudging the specific performance of the agreement of sale by such a corporation, and a . reference to ascertain the amount of liens and incumbrances on the property, it is not erroneous to deny a motion for leave to file a supplemental answer setting up the proceedings in another Court in an action brought by third persons against the defendants, (to which the plaintiffs here are not parties,) and a judgment of such other Court perpetually enjoining the defendants from conveying the property in performance of the agreement.

      A denial of such motion is especially proper if it appear in a high degree probable that the judgment in such other Court is the result of collusion between such third persons and the corporation, and intended to defeat the plaintiffs in their suit.
    (Before Hoffman and Woodruff, J. J.)
    Heard, November 7th, 1859;
    decided, March 10th, 1860.
    Appeal from a judgment rendered against the defendants, on a trial at Special Term, before Mr. Justice Hoffman.
    The action was brought to compel the specific performance of a contract for the sale of real estate, upon which now stands the defendants’ church edifice on Canal and Green streets, in the city of Mew York, at or near the northwest corner of those streets.
    The complaint alleged that the defendants are a religious corporation, duly incorporated under the statutes for the incorporation of religious societies. It then alleges the seizin of the defendants (subject to an annual ground rent): That on the 10th of Movember, the defendants entered into an agreement in writing with the plaintiffs, for the sale to them of the real estate above described, one part whereof was sealed with the seals of the plaintiffs and delivered to the defendants, and the other part was sealed with the corporate seal of the defendants, and attested by their Chairman and Recording Secretary, who were the proper officers to execute the same, and were thereunto duly authorized by the said Corporation and the same was delivered to the defendants. It then sets out the agreement, by which the defendants agree to sell to the plaintiffs, and the plaintiffs agree to purchase the aforesaid premises for the price of fifteen thousand dollars over and above the subsisting mortgage of fourteen thousand dollars thereon: The conveyance to be by warrantee deed and by the authority of the Supreme Court first obtained, and to be completed as soon as the title is examined; the whole purchase-money (over and above the existing mortgage) to be paid in cash, on the delivery of the deed. That after making such contract the defendants presented a petition in due form of law to the Supreme Court of this State; stating their ownership, their contract to sell and the price and terms thereof; setting forth the reasons which rendered the said sale for the interest of the said defendants and their congregation; and praying for an order authorizing the sale for the price aforesaid in pursuance of the contract, and the application of the proceeds to the purchase of other real estate and the erection of a church edifice thereon for the use of the said Religious Society; which petition was executed by the defendants under their corporate seal and verified by the President of their Board of Trustees; and that thereupon an order was duly made by the Supreme Court on the 18th November, 1852, authorizing the defendants to sell and convey the real estate aforesaid, in pursuance of the contract aforesaid, and directing the application of the moneys to the purchase of other real estate in New York, and the erection of a church building thereon.
    That the title was examined and approved, notice given, demand of a conveyance, notice of plaintiffs’ readiness to accept a conveyance and pay the money, draft of a conveyance tendered to .the defendants for execution, and that defendants refused to convey the premises. That plaintiffs are ready and willing to pay and accept a conveyance; defendants are in possession and in receipt of the ■rents.-and profits. That it. appears that the mortgage on the premises and liens thereon,- -taxes and. assessments, amount to. over $14,000, and. the ground rent for six months is about to become due. The plaintiffs demand that the defendants be adjudged to convey and out of the purchase-money, which plaintiffs offer to pay, to reduce the amount of liens and incumbrances to the $14,000, mentioned in the agreement, and also to pay damages for withholding the possession and costs.
    The defendants answered, setting forth the grant to them and that they hold, the property for the benefit of the congregation worshiping there, and for Church purposes ,and none other, and haye no power to sell or dispose of the same, and have made loans, and .giyen mortgages upon the faith and understanding that the premises should. be so used and not for secular purposes alone, or in any way to endanger the security of such mortgages, and such mortgages, • now outstanding, amount to about $20,000. That the Chairman and Secretary of :the defendants pretending to act for them, but without lawful authority, made, executed and delivered in the name and under the corporate seal of the defendants, the contract or agreement of sale set forth in the complaint. That thereafter the said Chairman and Secretary caused to be presented to the Supreme Court a petition setting forth the defendants’ ownership and other facts (specifying the statements in the petition, there given as reasons for the sale,) and stating the mating of the sale to the defendants, and praying that defendants be authorized to sell for the price agreed upon; that the Supreme Court made an order on the 13th November, 1852, authorizing the defendants to make such sale. And defendants further say that their seal was unwarrantably, and without due authority from them, affixed to such petition. That such petition does not correctly set forth the condition or wishes of the congregation or the value of the property, (they then state facts which they claim to be reasons why the sale was not for the well-being or interest of the congregation,) and that the property was at the date of the petition and is now worth $50,000. That James Keilty, Luke Orr and David Kelly, three of the congregation, on the 16th December, 1852, commenced an action for the purpose of preventing the defendants from selling or disposing of the premises, and obtained an injunction restraining the defendants from executing any conveyance to the plaintiffs or any other person, and from exercising any authority over the property or affecting or incumbering the same under or in pursuance of the resolution of the congregation of November 8th, 1852, or of the resolutions of the Trustees of the congregation of November 8th and November 10th, or of the contract with the plaintiffs, or of the order of the Supreme Court of November 13th, 1852; which action is still pending. That since the order of the Supreme Court of November 13th, 1852, the defendants have in no manner ratified the agreement with the plaintiffs nor acted thereon. That such contract is utterly void. That the Court has no jurisdiction of the subject of this action, the power of sale and disposition of the defendants’ property being vested in the Supreme Court and not in this Court nor in the defendants. That inasmuch as the defendants are restrained by the before-mentioned injunction, this Court cannot grant the relief sought.
    The case was brought to trial upon these pleadings, on the 27th of December, 1853, and the plaintiffs produced and read the contract as set forth in the complaint, the execution whereof was duly proved before a Commissioner of Deeds in the manner entitling it to be recorded and to be read in evidence.
    The Court ruled and decided:

      1. That the burden of proof was upon the defendants to discredit the seal of the Corporation affixed to the said contract of sale, and to the petition of the Supreme Court, set forth in the complaint.
    2. That the burden of the proof was upon the defendants to show inadequacy of price in the contract of sale.
    To each of such decisions, the defendants’ counsel then and there duly excepted.
    The defendants’ counsel then read in evidence the original summons, complaint and injunction in the suit of James Keilty and others against the defendants, in the Supreme Court, the same having been issued and duly served on the defendants herein, December 16,1852.
    The grounds of the decision at General Term do not make it necessary to state the contents of that complaint—it stated grounds for restraining the delivery of any deed to the plaintiffs in this action, or selling or disposing of the property, and attacked the regularity and validity of resolutions of the congregation and of the Board of Trustees under which, as alleged, the contract with the plaintiffs was made, and averred that the property was worth at least $45,000. But to that suit in the Supreme Court the plaintiffs in this action were not parties.
    The defendants’ counsel thereupon moved to dismiss the complaint in this action, upon the following grounds:

      First. The Supreme Court (in this district) alone has the power of sale and disposition of the real estate possessed by the defendants.
    That power is discretionary, and although the Court did at one time give the defendants permission to sell the church property, that permission has been annulled and vacated by the injunction in evidence.
    This Court has no jurisdiction in the premises, and can grant the plaintiffs no relief in this action.

      Sécond. The contract of sale of November 10th, 1852, is wholly invalid, and of no binding force or effect
    1. The defendants are only “empowered to take into their possession and custody ” the real estate of the Church.
    2. The Trustees, in making sales and conveyances of the real estate belonging to the Church, act only as officers of the Supreme Court.

      At the date of this contract, the defendants were not authorized to make any sale or disposition of the Church property.

      Third. Courts of equity, when existing as coordinate tribunals, are bound to regard the orders of each other when duly made.
    And, as executing the required deed would render the defendants hable to punishment for contempt, this Court cannot compel the doing of an act which would be productive of such consequences.

      Fourth. Trustees for Religious Societies, under the act of 1813, in executing conveyances of land, act only as officers of the Supreme Court, and under its direction and authority, and if they fail to perform the duty imposed, the Supreme Court alone has the power to afford relief.
    The motion was denied, and the defendants excepted.
    The case was then submitted, and on the 10th of January, 1854, the Court ordered judgment that the plaintiffs are entitled to the specific execution of the contract, and have a conveyance from the defendants upon paying the contract price, and to have deducted all taxes, assessments, ground-rents and liens which exceed the whole price agreed to be paid. And ordered a reference to compute the amount of such liens.
    Before the Referee made his report, and on the 16th of May, after the said judgment was ordered, the defendants obtained an order to show cause and moved for leave to file a supplemental answer setting forth the proceedings had in the said suit of Keilty and others against the defendants in the Supreme Court.
    The papers on which the motion was founded showed that after the said decision, in this Court, that cause came on for trial on the 10th of March, 1854, and on the trial the defendants applied for leave to file a supplemental answer there, setting forth the judgment order of this Court, of January 10th, 1854, which application was denied. That the trial proceeded and judgment was rendered for the plaintiffs in that suit by which the aforesaid injunction was made perpetual.
    The motion was opposed by the plaintiffs here, and was denied, and from the order denying such motion, the defendants appealed. The contents of the papers read by the parties, respectively, on this motion, do not seem necessary to be stated; they are sufficiently adverted to in the opinion of the Court.

      The Referee made his report, before'the motion, last mentioned, was decided, and on the 25th November, 1854, final judgment was entered that the agreement be'specifically performed and adjudging the amount to be paid by the plaintiffs, and allowing to the plaintiffs their costs, including an allowance of one per cent on the contract price.'
    Due exceptions were taken by the defendants, and they appealed from the judgment.
    The appeal from the order denying leave to file the supplemental answer, and the appeal 'from the judgment were argued together in the General Term.

      Charles O'Conor, for the defendants (appellants).
    I. The alleged contract between the Trustees and the plaintiffs, for the sale of the property in question, was ultra vires and void.

      First. Under the act providing for the incorporation of Religious Societies, the power of the Trustees in respect to real estate, is defined with the utmost exactitude, and in such a manner as to exclude absolutely any implication of a power to sell.
    1. As to all property belonging to the society at the time of its incorporation, they are authorized by section 4 11 to take the same into their possession and custody,” and to recover, hold and enjoy the same, “as fully and amply as if the right or title thereto had originally been vested in said Trustees.” The same section defines their power in respect to property not “ originally vested" in them as being “to purchase and hold, and to demise, lease and improve the same for the use of the- church, congregation .or society, or other pious uses.” The right of the Trustees “ to intermeddle is an authority, and not an estate or title.” (Per Denio, J., People v. Fulton, 1 Kern., 96.)
    2. If there is any force in the maxim expressio unius exclusio est alterius, the authority to sell real estate, contemplating it as a moral entity, is negatively withheld from the Trustees by the specification of their powers in section 4. And by section 11, it is affirmatively and exclusively granted to the Chancellor. (2 R. L., 212, §§ 3, 4, 6, 11; 2 Kent’s Com., pp. 281, 282; Voorhees v. Presbyterian Church, 8 Barb., 147; Vielie v. Osgood, 8 Barb., 130, per Paige, Willard and Hand, J. J.; Montgomery v. Johnson,
      9 How. Pr. R., 237, per Welles, J.; In re Pres. Church, 7 How. Pr. R., 476, per Edwards, J.; Wyatt v. Benson, 23 Barb., 332, per Davies, J.; In re Ref. Dutch Church of Saugerties, 16 Barb., 241, per Harris, J.; De Ruyter v. St. Peter's Church, 3 Comst., 240.)
    3. The power to sell thus exclusively vested in the Court, .can only be exercised by the Court through its officers or agents, for this purpose designated. It is a misconception of the principles which govern the act, to say that the Trustees, when they sell, act by the license, permission or consent of the. Court. The agent or officer who sells, must do so under a peremptory “ order " of the Court.

      Second. The power to sell thus exclusively vested in the Court, is a power to sell, not a power to make executory contracts concerning or contemplating a sale at a future period.
    1. The word “sale,” in our legislation, has a settled technical import. It means a consummated act. (Edwards v. Farmers' Loan Co., 21 Wend., 493; S. C., on Appeal, 26 id., 560).
    2. The provision touching the application of the proceeds shows that an immediate, out-and-out sale was alone contemplated.
    3. An executory contract to sell is in the nature of traffic. Traffic is the prolific source and parent of strife and litigation, the legislature could not have intended to hazard involving church property and religious societies in such conflicts.
    H. The Court which makes the order to sell is alone authorized to enforce the execution thereof. The power of sale is a high judicial trust reposed in the Court itself, to be executed through its order operating upon and controlling its own agent. Every such judicial trust is independent of any control over the Court or its officers, save such as may be exercised by a superior appellate jurisdiction; and in this case it embraces the whole proceeding from its initiation to its final consummation by sale executed and a reinvestment of the proceeds.
    I. All analogy supports this construction. The sale by receivers and masters in equity, or by sheriffs, at common law, have been uniformly controlled by the order of the Court under whose judgment the sale was made. (Taylor v. Carryl, 20 How. U. S. R., 594; Wiswall v. Sampson, 14 id., 67, 68.)

      .2. The Court treats the purchaser as having come into its presence and subjected himself to its jurisdiction. It relieves him or compels him to complete his purchase, as sound legal principles require by summary proceedings. (JacJcson v. Edwards, 22 Wend., 501; Blakeley v. Colder, 15 K. Y. R., 620.)
    3. The Court might have revoked its order for a sale at any' time before it was fully executed by a conveyance; and the Court did revoke it in effect and in fact. It is strange indeed if an agent of the Supreme Court specially appointed by it to perform its order, must come here" and account to this Court for his conduct in obeying or disobeying the orders" of that Court.
    4. This power of the Court was in no degree affected by the previous existence of the agreement to sell, or by its own act in directing a sale conformably to that very agreement. This was no more than approving an offer; it was a mere ratification. It is repugnant to sound policy that the agent or officer of the Court, who is directed to conduct a sale, should be personally bound, in respect to his performance, by previous contract with the vendee. It is equally improper that the Trustees should, be so bound to petition for the sale. In each case the agent holds a fiduciary capacity, and should not be trammelled by any tie in favor of the vendee. (Overseers v. Overseers, 3 Cow., 301, 302; Herrick v. Grow & Brown, 5 Wend., 579; N. Y. Central Ins. Co. , v. National Prot. Co., 4 Kern., 85.)
    5. A subsequent ratification by the Court is not a lawful mode of effectuating a sale. (Dutch Church v. Mott, 7 Paige, 84.)
    III. It is in the discretion of a court of equity to exercise or decline jurisdiction in cases where specific performance is sought. In the present case, a sound discretion would have declined it. A doctrine analogous to comity forbade its exercise. (Gardner v. Thomas, 14 John., 138; Johnson v. Dalton, 1 Cow., 548; Taylor v. Carryl, 20 How., 611; Conover v. Mayor, 5 Abb. Pr. R., 403 ; S. C., 25 Barb., 514; Bennet v. Leroy, 5 Abb. Pr. R., 55 ; Mayor v. Conover, id., 265.)
    IV. The Court erred in deciding that the burden of proof was upon the defendants to discredit the seal of the church affixed to the alleged contract, and the petition to the Supreme Court for leave to sell, and to prove inadequacy of price.

      1. The application for leave to sell, must be made by the corporation. (Act of 1813, § 11.)
    2. Although the corporate name of the Society is “The Trustees of the Irish Presbyterian Church,” &c., such Trustees, although having the custody of the seal of the Church, do not in fact constitute the Corporation for the purposes of such an application, but such Corporation consists of every member of the congregation having the privilege of voting. (Robertson v. Bullions, 1 Kern., 247; The Baptist Church, &c., v. Witherell, 3 Paige, 296; Lawyer v. Cipperly, 7 id., 281; Wyatt v. Benson, 23 Barb., 327.)
    3. “ The relation of the Trustees to the Society is not that of a private Trustee to the cestui que trust, but they are the managing officers of the Corporation and Trustees in the same sense in which the President and Directors of a Bank or a Railroad Company are Trustees.” (Robertson v. Bullions, 1 Kern., 266; The People v. Fulton, id., 96.)
    4. The entire scope of the statute in its restrictions upon the powers of the officers of Religious Corporations, is for the benefit of the Corporation, and to protect the Society from the fraudulent or illegal acts of the Trustees; and as the application for leave to sell must be made by the majority of the corporators, according to the cases above cited, the consent of such majority, as it is denied in the answer, should have been proved on the trial. (Wyatt v. Benson, 23 Barb., 334; Vielie v. Osgood, 8 id., 133; In re The Reformed Presbyterian Church, 7 How. Pr. R., 476.)
    V. This Court erred in refusing to admit the supplemental answer tendered in this suit.
    1. The Court has the power, and it is the duty to allow supplemental pleadings to be filed, when facts materially affecting the relations of the parties occur after issue joined. (Code, § 177; Drought v. Curtiss, 8 How. Pr. R., 56.)
    2. Although the pendency of an action for the same cause in another Court cannot be pleaded in bar, yet a judgment and recovery can be. (Bowne v. Joy, 9 John., 221; Walsh v. Durkin, 12 id., 99; Embree v. Hanna, 5 id., 101; Haight v. Holley, 3 Wend., 262; Nicholl v. Mason, 21 id., 339.)
    3. The Court, on the first hearing of this action, disregarded the injunction order of the Supreme Court, on the ground that no final judgment had been obtained, and that the pendency of that action could not be pleaded in bar, but suggested that the defendants should, when the suit in the Supreme Court was-disposed of, apply-for leave to file a supplemental answer in this suit in the nature of a puis darrein continuance. (Opinion of Hoffman, J.)
    4. The order of this Court, of January 10, 185.4, was a mere interlocutory order. Further questions, directions and judgment were reserved until the coming in of the Referee’s Report.
    5. The Supreme Court having,'by the judgment in the suit of Keilty and others against the defendants, in the; exercise of its conceded power, revoked the authority for the alleged contract with the plaintiffs, and perpetually enjoined the defendants from executing it, this Court should not, on a mere motion for leave to file a supplemental answer, have refused to allow the defendants even to plead such a final judgment of a Court, of at least coordinate jurisdiction, whatever might have been the decision of this Court upon such judgment when properly brought before it for adjudication; The refusal to allow such a judgment to be pleaded was a refusal even to consider its effect.
    VI. The complaint contains no cause of action within the jurisdiction of this Court, and therefore the judgment and interlocutory orders of the Special Term should be reversed, and the complaint dismissed, with costs. (Edmonston v. McLoud, 16 N. Y. R., 545.)

      William M. Evarts, for the plaintiffs (respondents).
    I. The real estate involved in this suit was, at and. before the date of the contract with the plaintiffs, the property of the" defendants, a religious incorporation; as such property, the legal title, estate, control and management thereof, and the transaction of all affairs relating thereto, were vested in the Board of Trustees of such Corporation. (Laws of 1813, ch. 60, §§ 3, 4, 10, 11, 15, 16; 3 R. S., 206; 2 ed.; Robertson v. Bullions, 1 Kern., 250, 251.)
    II. But the title and estate thus held, were subject to religious uses, and whether by positive statutes or by the general principles of the law of trusts, the alienation of property so held from the purposes of the trust, was prevented. To meet the obvious evils of an absolute inconvertibility of property held to religious uses, the statute permits the sale of its real estate by the Corporation on application to the Chancellor, and the investment of its proceeds to the same religious uses, ut supra, section 11.
    By the existing laws, this judicial control is in the Supreme Court, and in the County Courts. (Code, § 30, sub. 9; Dutch Church, &c., v. Mott, 7 Paige, 84; De Ruyter v. Trustees of St. Peter's Church, 3 Barb. Ch. R., 119; Wyatt v. Benson, 23 Barb., 333.)
    III. The consent of the Supreme Court having been given to the contracted sale of the defendants’ real estate to the plaintiffs, the complaint showed a case for specific performance, and this Court had jurisdiction of the subject and of the parties.
    IV. The defendants offered no proof at the trial in support of any of the defenses set up in the answer, excepting a preliminary injunction in a suit in the Supreme Court, by three of their corporators, against the defendants, (but to which these plaintiffs were not parties,) restraining from the completion of the sale.
    The pendency of that suit between strangers, and the provisional remedy granted as between them, could in no way affect the rights of the plaintiffs in this action, or impede the prosecution of their remedies in this Court.
    The rights acquired by the plaintiffs by their contract, could not be divested or impaired by any adjudication to which they were not parties, much less by a pending litigation to which they were not parties.
    V. The Court below ruled that the burden was on the defendants to show that the contract proved by the plaintiffs, was not the obligatory contract of the defendants, and that the application to the Supreme Court, on which that Court authorized a conveyance in fulfillment of such contract, was not the application of the defendants.
    These rulings were unquestionably correct. The instruments produced, bore the seal of the defendants, and the usual attestation and verification, and the plaintiffs were entitled to rest upon them.
    VI. The Court below ruled that the burden of proving the inadequacy of the contract price, set up as a defense against a judgment of specific performance, was upon the defendants.

      This ruling was unquestionably correct.
    The judgment should be affirmed, with costs.
    On defendants’ appeal from the order denying leave to file a supplemental answer:
    I. The judgment in the action of Keilty and others, in the Supreme Court, to which these plaintiffs were not parties, in no way bound these plaintiffs. It could not be received in evidence against these plaintiffs; if received, it could have no effect against them; a fortiori, the motion to introduce it in a supplemental pleading was properly denied.
    II. The judgment in that suit was, upon the motion papers, manifestly collusive between the parties thereto, and sham.
    1. The defendants had interposed an answer in that suit constituting a complete defense to it. The proofs to support it were irrefragable, and of record.
    2. At the trial (so called) the defendants produced a supplemental answer, averring a change of persons and opinions in the Board of Trustees, and praying for a judgment in the action in aid of the plaintiffs’ claim therein.
    3. At the trial the defendants offered no evidence. The trial was confined to a consideration of the meeting of the congregar tion of November 8th, 1852, and of meetings of the Trustees of November 8th and 10th, 1852. Those meetings are adjudged —upon what evidence it does not appear— not sufficient authority for the contract, and for the application to the Supreme Court, on which the order for sale was made.
    4. A mere reading of the minutes of the proceedings of the meetings of the congregation and of the Trustees, annexed to the answer in the suit of Keilty, would have shown repeated and abundant ratifications of the contract made for the sale of the property, if any imperfection existed in the original authority.
    5. The whole trial and judgment are part of a clumsy scheme to embarrass an adverse and responsible litigation in this Court, on the merits and between the opposing parties, by an apparent adjudication upon some parts of those merits between parties of one mind and purpose of hostility to the plaintiffs in the real litigation here.
    III. The object proposed by the motion is of this kind:

      The issues raised on the pleading in this action presented all the defenses which, it is pretended, exist against the plaintiffs’ right as prosecuted here.
    At the trial of these issues the defendants produce no proof to support them, except of the pendency of the writ of Keilty and' others against them in the Supreme Court.
    The defendants, beaten here on the trial on the merits, collude with the plaintiffs in the other suit in getting a judgment against themselves there.
    The defendants then ask leave of this Court to interpose that sham adjudication as a bar to the plaintiffs’ litigating their rights here.
    The motion was properly denied, and the order should be affirmed, with costs. ■
   By the Court —Woodruff, J.

This case is brought before us by appeal from an order denying the defendants’, motion for leave to file a supplemental answer, and also by appeal from the final judgment rendered on the hearing at Special Term.

I. It is objected by the respondents that no appeal will lie from an order refusing leave to file a supplemental answer setting up facts arising since the former answer was put in, because the giving or withholding such leave rests in discretion merely, and that in no case is the defendant entitled to such leave as of strict right. (Code, § 277.)

This Court have certainly, in one instance, (6 Duer, 661,) entertained such an appeal, and at a General Term held by four of the Justices, reversed the order denying such leave, all the Justices concurring. We do not therefore feel at liberty to dismiss the appeal on the objection now raised. Other reasons might be given for regarding this as an appealable order, but the reason named is sufficient.

We think, however, that the - order appealed from was properly made, and should be affirmed.

The action is brought to compel the specific performance of a contract to convey to the plaintiffs certain real estate, and the contract provided that the conveyance should be made by authority of the Supreme Court first obtained. An order in due form was obtained from the Supreme Court sanctioning the agreement, and authorizing the defendants to sell and convey the real estate referred to, in .pursuance of the contract so made.,

After the cause had been tried upon, the merits, and it had been declared and adjudged that the plaintiffs are entitled to have a specific execution of the contract, and pending a reference to ascertain what allowances should be made to. the plaintiffs (by way of deductions from the purchase money,) by reason of taxes, assessments and incumbrances upon the premises, a judgment was rendered in the Supreme Court which gave occasion for the application by the defendants for leave to file a supplemental answer.

Certain members of the congregation had filed a bill in the Supreme Court against the defendants to restrain them from executing a conveyance in pursuance of the agreement mentioned, or under the order authorizing such sale. To that bill the present plaintiffs^ were not parties. ' The judgment of the Supreme Court awarded such injunction. •

That judgment the defendants sought to set up as a defense to this action by supplemental answer.

Such a judgment could not, upon any principle of law or equity, be regarded as an adjudication of the rights of .these plaintiffs under their contract, and the order authorizing the sale and conveyance in pursuance thereof. It did not bind the plaintiffs as an adjudication of any question which, by virtue of any right acquired under their contract, they had a right to contest.

It did not purport to revoke and set aside the order of the Supreme Court authorizing the conveyance, but only to enjoin the defendants from acting under the permission thereby given. If that order could be revoked in a manner that should affect the plaintiffs without notice to them, it was not done.

The judgment did not, as against these plaintiffs, determine that the contract was not a lawful contract made by proper authority, in all respects binding on the Corporation. Or that the. order was not duly, made in the exercise of competent power, and upon evidence as between these parties sufficient to establish its validity.

For the same reasons, such judgment was not, as against these plaintiffs, even prima facie evidence of any of the facts last enumerated.

The chief) if not the only purpose therefore which the judgment could serve, if a supplemental answer was permitted in order to bring the same before this Court, was to lay the foundation for the claim, that an injunction restraining the defendants from acting under the authority given by the former order was a virtual revocation of the order-itself, and that therefore their power to perform their contract was at an end, or that -at least specific performance ought not to be decreed when such performance would involve the violation of an injunction, and expose the defendants to be proceeded against therefor in another Court.

Without conceding to a judgment granting such an injunction in a suit to which the purchasers were not parties, the effect of a virtual revocation of the previous order, it must suffice to say that it was palpably true in our opinion, as it was in the opinion of the Justice denying the motion, that the judgment was in substance and effect obtained by collusion, by a willing plaintiff against willing defendants, both desirous of defeating these plaintiffs in their claim to have this contract performed.- •

However true it was that when that action was commenced^ the defendants were acting in good faith, and proposed honestly to resist the claim set up therein, it is, we think, clear that a change occurred in their determination, and that the apparent litigation in the Supreme Court did not proceed upon a full and fair presentation to that Court of all the facts, and was not intended nor desired by either party to result otherwise than it did.

It is not, we think, true that when a Beligious Corporation has made a valid contract, with the assent of the Supreme Court, to a conveyance by á proper order, regularly obtained,- that Corporation may, by its agents, voluntarily procure, or colluding with others, submit to an order forbidding the conveyance, arid then be permitted to allege such order as an excuse for not perforining the contract.

But if-it could be conceded that when brought before the Court in the defendants’ answer, such a judgment might be construed as tantamount to a revocation of the previous order, wé must still say, that if obtained, as it appears to us, the judgment in question was obtained, no leave to set it up as a defense should be given, if the Court have any discretion on the subject.

There is another reason why there is no hardship upon the defendants in this: The plaintiffs in the Supreme Court seeking to prevent a conveyance to the present plaintiffs, and knowing that they held the contract therefor, might have made them parties to their suit, and had they done so, this suit would probably have been unnecessary. And we cannot doubt that if the defendants had, in due season, sought in that Court to have these plaintiffs made parties, it would have been done. The application said to have been made on the trial there, after the plaintiffs and defendants were both intent on defeating the claim of the present plaintiffs, does not bear the appearance of an earnest wish to protect the defendants from the necessity of litigating this suit, but rather suggests a determination by all available means to defeat it.

II. In considering the appeal from the judgment, it is to be observed that it is alleged in the complaint, and not denied in the answer, that an agreement with the plaintiffs for the sale to them of the premises in question was made in writing by the defendants under their corporate seal, and attested by the Chairman of the defendants’ Board of Trustees and by their Recording Secretary, and that they were the proper officers of the Corporation to execute such an agreement. But it is averred in the answer that in executing and delivering the agreement of sale, set forth in the complaint, the Chairman and Secretary acted without lawful authority.

It is also averred that the defendants presented a petition to • the Supreme Court, under the seal of the defendants and verified by the President of their Board of Trustees setting forth such contract, and praying for an order authorizing the sale, and that such order was made. The answer does not deny these allegations but avers that their corporate seal was unwarrantably and without due authority from them affixed to said petition, and it also controverts the facts which were stated in the petition as reasons for making the sale.

The answer then set up as a defense the pendency of an action in the Supreme Court by three of the congregation against the defendants herein, in which an injunction pendente lite had been obtained restraining the defendants from executing any deed to the plaintiffs or to any other person or persons in pursuanee of the contract in question, or the order authorizing a conveyance, until the further order of the said Supreme Court.

It seems to us clear that in this state of the pleadings if it was incumbent on the plaintiffs to offer any proof whatever, it was enough to produce the contract admitted to have been made by the defendants and to have been executed by the proper officers. If the admissions were not sufficient, the presumption of due authority from the Corporation then arose, as held in reference to instruments executed under the seal of a corporation by the officers thereof in repeated cases. In this respect we find no warrant for any discrimination between an ecclesiastical corporation and any other. In so far as it was competent for the Corporation to authorize the execution of the contract, the presumption that .such authority was given applies to them as fully as to any other Corporation whose contract, deed or covenant is thus atttested. And that such presumption arises from such an attestation, (see Angell & Ames on Corporations, ch. 7, § 6, 3d ed., p. 194, and numerous cases cited in note 1; Lovett v. Steam Saw Mill Association, 6 Paige, 54; Leggett v. The New Jersey Manufacturing and Banking Company, Saxt. Ch. R., 541; Jackson v. Campbell, 5 Wend., 575; Hoyt v. Thompson, 1 Seld., 335, 355, 356.)

The agreement being proved, or, as we think, being admitted by not being denied to have been made by the defendants, the presentation of the petition in like manner authenticated, and the order of the Supreme Court thereupon authorizing the sale and conveyance being admitted by the pleadings, there was nothing further to be proved by the plaintiffs to establish the case made by their complaint. The burden of impeaching the authority to execute the agreement and to malee the application for and obtain the order of the Supreme Court was thrown upon the defendants, and the only proof which the defendants offered was a summons and complaint in an action in the Supreme Court, to which the plaintiffs were not parties, and an injunction order granted thereon, as set up in the defendants’ answer. If the petition and order of the Supreme Court thereon were not sufficiently admitted in the pleadings they were put in evidence by the defendants themselves as a part of the papers in that action, and were on their face a petition by the Corporation itself under the corporate seal—setting out the contract with the plaintiffs-as their contract.. . .

That the pendency of the suit in the Supreme Court could operate to bar the plaintiffs of their remedy in the present action cannot be claimed, unless the injunction granted there pendente lite was in effect a-revocation of the order authorizing a sale to these plaintiffs; It was clearly no revocation. It only purported to restrain for the time being .any action under that order. If the plaintiffs. had acquired a right to a conveyance by virtue of the contract and the order of the Supreme Court' authorizing the sale, that right could no more be affected by such an injunction, than , in a case-in which the party agreeing to convey was a private individual.

• It is quite true that, where, in an action for- a specific performance,-it appears that the defendant cannot make title to the premises agreed to be conveyed, the plaintiff will be obliged to accept compensation in damages. And this would be so, whether the .defendant.were a private person or a corporation. But it can never be permitted to a defendant to protect himself by showing that, ah adverse claim has been set up by one not a party to the suit upon which he has been enjoined. The defendant, in case of such conflicting claim, must, by something in the nature of a cross-bill, showing his own good faith and his readiness to perform- his contract, bring the counter-claimant before the Court.

. Unless, therefore, the appellants are right in denying that this Court has any jurisdiction to compel an ecclesiastical corporation to perform an agreement to convey .its real estate, or unless the agreement was itself void because the corporation has no power to make'an executory agreement to sell its lands, or the authority is so.vested in the. Supreme Court that the Trustees have no power to. sell in any form, that power being vested in the Court itself,, the defendants stood before the Court without any defense, and subject to a decree for the performance of their agreement.

1. The question of jurisdiction, in so far as it depends upon the inquiry whether this Court has a general jurisdiction in equity. cases is not, in this Court, open to discussion. It was considered in the case of Forrest v. Forrest (6 Duer, 114.) Such jurisdiction was, long before that time asserted and exercised. It.has constantly since been exercised. Numerous cases in equity, originating in this Court, have been considered in the court of last resort, and the repeated affirmance of the judgments of this Court in such cases suggests that no serious doubt on this subject exists. (5 Seld., 263; 15 N. Y. R., 587; 16 id., 12; id., 392; 17 id., 9; 18 id., 481; 19 id., 208; id., 499.)

A suit to compel the specific performance of a contract is within the ordinary jurisdiction of a court of equity.

The objection to the jurisdiction of this Court is of no force, unless it arises from the character of the defendant, or from the subject-matter of the agreement.

The mere circumstance that the defendant is an ecclesiastical corporation cannot, we think, affect the question. In so far as such a corporation has authority to make contracts, it is subject to the ordinary rules of law and equity applicable to any other contracting party.

If, therefore, there is any want of power in this Court to order the specific performance of the contract, it must be because the whole authority over the subject of sales of lands by an ecclesiastical corporation is so vested in the Supreme Court that the corporation has no power to make a contract of sale, and no other Court can direct the performance of such a contract. This, therefore, involves the consideration of the inquiry next to be considered, viz.:

2. -Can such a corporation bind itself by an agreement to sell lands, or, under our statute, is the power vested exclusively in the Supreme Court, the Trustees, in executing the conveyance, acting merely in obedience to its mandate in a quasi ministerial capacity?

It must be deemed settled that the title to the real estate held by such a Corporation is vested in the Corporation itself by its corporate name, and not in the Trustees as Trustees. Though named in the corporate name as Trustees, it is the Corporation that is described by the aggregate terms “The Trustees of the Irish Presbyterian Church in the city of New York.” The' actual Trustees for the time being having the custody and management of the property, the fee is in the Corporation. This view of the subject received the approval of the Court of Appeals, in The People v. Fulton, (1 Kern., 94,) and Robertson v. Bullions. (Id., 243.)

The title to the real estate being thus vested in the Corporation, the only restraint now existing under the laws of this State upon their alienation is, as we think, the indispensable condition that the. order of the Supreme Court be obtained directing such sale; and that when such order is obtained, the power of the Corporation is as full and ample as the power of any other Corporation to sell its real estate, and acts done with that view just as obligatory upon them. In such case the Corporation, holding the title in fee, has authority to sell and convey; whatever want of power had existed is now supplied by the order of the Court. Whether the Supreme Court be regarded as the source of the power, or as acting merely in removing a prior disability, when the proper order is made, there exists an agreement to convey and a power to convey, and these concurring, there seems no obstacle to a decree compelling the performance of the agreement. We think, however, that the power of the Supreme Court in the matter is a regulating power for the purpose of preventing a violation of the trust for the particular use to which the property is dedicated, and to see that the proceeds of sale are invested for the like uses; and that the order of the Supreme Court in such cases authorizing the sale is permissive only and not mandatory.

In these respects, we think the reasoning of the Justice at Special Term is corredt, and sustained by the authorities there cited; and that “the power to contract for a sale subject to the sanction of the Supreme Court vests in a Religious Corporation; and when such sanction has been obtained and remains in force, the Corporation is as much bound to fulfill it as an individual ” is, when he has made a valid agreement to sell.

When the rights of the purchaser have become so far fixed that he holds an agreement duly executed by the Corporation, and the requisite sanction of the Supreme Court has been obtained, he can be compelled to pay for the land, and his title to a conveyance seems to us clear unless and until by some proceeding to which he is a party, that sanction, if in such case it be revocable, is duly revoked and withdrawn.

The order of the Supreme Court does not operate to compel the corporation to sell. If the power of sale was vested in that Court, in the sense in which we understand the appellants to contend, then it would seem to follow that in any case so soon as that Court obtained .jurisdiction of the Corporation by the presentation of a petition, the Court could compel a sale whether the Corporation deemed it expedient to accept the terms offered or not. This we think is not so; the agreement of the Corpora- ■ tion is indispensable and the option to sell or not to sell, down to the moment a valid agreement for a sale is made, belongs entirely to them, with the single qualification that if they sell the sanction of the Court must be obtained.

In this view of the subject, we think the making of an ex-ecutory agreement subject to the approval of the Court, not only not objectionable or invalid as an act ultra vires, but in general, the proper and preferable mode of bringing the whole question of the propriety of giving sanction to the sale into view, and under the discretion which the Court are to exercise.

In The Baptist Church v. Witherell, (3 Paige, 300,) the Chancellor held that the legal title was vested in the Corporation. In The Dutch Church v. Mott, (7 Paige, 84,) he held that the act of March, 1806, gave to every religious corporation an unlimited power to convey any real property held by them in trust for the corporators, provided the previous consent of the Court of Chancery to such alienation, and a direction for the proper application of the proceeds was obtained.

The general power of all Corporations to convey their property and to bind themselves by their contracts is possessed by religious corporations, subject only to the condition that the consent of the proper Court shall be obtained, and we perceive no reason for holding that such agreement may not be made with a condition that the sanction of the Court be given thereto.

In De Ruyter v. St. Peter's Church, (3 Comst., 241,) Mr. Justice Ruggles says, of the powers of that Corporation (which in making sales required the concurrence of the Chancellor, as specified in the 11th section of the act to provide for the incorporation of religious societies,) that the power to sell is in the Trustees and not in the Court of Chancery. That Church acted under a special charter, but if our views are correct as already stated-, the observation is also applicable to the present case, for if the observations of the Chancellor in The Dutch Church v. Mott, be adopted, then the phraseology of the charter of St. Peter’s would not affect the decision;, for if,'as the Chancellor held, Corporations have under the general law power to convey, provided-the previous consent of the Court of Chancery is obtained, those Corporations stand .in that respect, in the same situation as St. Peter’s did under its special charter. The observations of Judge Ruggles, that the Court could order the sale of property .of Corporations under the general act to be made by a Master, were entirely obiter, and if true in the sense that, when an order has been regularly obtained, and an agreement made on the faith of it, that .Court could in that proceeding compel the Corporation to execute .the conveyance or direct an officer of .the Court to do so if they .still refused, still it would not follow that the Corporation might not also be compelled by a bill duly filed for that purpose to comply with their agreement. We greatly .doubt that the learned Justice meant to be understood as holding that the Court had" power, regardless of the will of the Corporation and in the absence of any agreement by the Corporation, to order a Sale of its real estate by one of the officers of the Court.

The doubt expressed in The Dutch Church v. Mott, (7 Paige, 84,) whether a ratification after an actual sale and conveyance was equivalent to a consent given before the sale was consummated, does not apply to this case. Here there was no sale nor obligation to sell that was not subordinate in terms to the power of the Supreme Court to withhold its consent, and to the condition that such consent should b"e granted.

We are therefore, of opinion that it; was sufficiently proved that the plaintiffs held a valid agreement, all .the conditions of which were satisfied, by which the defendants were bound to convey the lands to the plaintiffs, and that in that situation the defendants were subject to the general rules of equity applicable to the subject of specific performance, and therefore to the jurisdiction of any Court having general equity powers before whom their appearance could be enforced, and therefore that there is no foundation for the claim that this Court had no jurisdiction to make the judgment or decree which is- appealed from.

Under those circumstances, when the plaintiffs’ case was established, we do not perceive that the Court were at liberty to withhold the decree sought. It is true that the power to order the specific performance of contracts is, in a sense, discretionary. So are very many of the powers which courts of equity possess and exercise. But that discretion is governed, for the most part, by settled rules; and where a plaintiff is seeking a relief to which, by such rules, he is clearly entitled, and no substantial defense to his claim is established, the relief may not be capriciously denied.

We think that, if- the defense set up in the answer was true; if the agreement was executed without the authority of the Corporation ; or if the application to the Supreme Court was without due authority; or if there was any fraud or irregularity which would justify the defendants in refusing to perform the agreement ; the defendants should have proved it. The plaintiffs do not appear, in any respect, in fault; and if, by any possibility, the decree appealed from can operate to the prejudice of the defendants’ rights, it will be owing to their failure to give any proof on the trial of facts or circumstances which should excuse them from performing the agreement.

The judgment appealed from should be affirmed.

Judgment affirmed.