First Department, March, 1910. [Vol. 137. Jersey, but only one, Mr. A. B. Hammond, is named. A commission may only issue to take the testimony upon interrogatories of witnesses named therein, and necessarily, therefore, named in the moving papers. (Code Civ. Proc. § 887; Lazarus v. Schröder, 49 App. Div. 393.) The plaintiff also desires to take the depositions of three witnesses, named, residing in Chicago in the State of Illinois. It sufficiently appears that the witnesses named in the moving papers are material witnesses. It is objected that the plaintiff wishes to examine the Chicago witnesses, who are attorneys, relative to confidential communications made to them by their client; but we are unable to tell from the moving papers how much of the examination sought will be privileged. Besides, the client may waive the privilege. Questions of this sort can only be determined when they actually arise. A commission issues as a matter of course to take the testimony of material witnesses residing without. the State. The fact that a motion for an open commission had been denied was no reason for the denial of a motion for a commission to take the depositions upon written interrogatories. The order should be reversed, with ten dollars costs and disbursements, and an order granted directing that a commission issue to examine upon written interrogatories the witnesses named in the moving papers. INGRAHAM, P. J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. App. Div.] First Department, March, 1910. In the Matter of the Application of the WESTMINSTER PRESBYTERIAN CHURCH OF WEST TWENTY-THIRD STREET, a Domestic Religious Corporation, Appellant, for Leave to Sell Its Real Estate Situated in West Twenty-third Street, Borough of Manhattan, and to Reinvest the Proceeds of Sale in Property in Another Locality, etc. THE TRUSTEES OF THE PRESBYTERY OF NEW YORK, Respondent. First Department, March 24, 1910. Religious corporations — decision of ecclesiastical tribunal binding — expulsion of church from religious denomination — petition to sell lands - stay. - The act of the Presbytery of New York in dissolving a Presbyterian church so that it ceases to belong to the Presbyterian denomination when affirmed by the appellate tribunals of that church will be accepted by the courts as final and conclusive. A petition by such church, continuing as a secular corporation, for permission to sell its lands will not be granted where the Presbytery of New York has intervened claiming that the lands belong to the Presbyterian denomination and there are actions pending involving the right to the possession and control of the property. APPEAL by the petitioner, the Westminster Presbyterian Church of West Twenty-third Street, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of November, 1909, confirming the report of a referee, and also from an order entered in said clerk's office on the 3d day of December, 1909, denying the petitioner's motion for a resettlement of said first order. Charles M. Parsons, for the appellant. Henry W. Jessup, for the respondent. Scorr, J.: In this proceeding for leave to sell church property the petitioner appeals from an order permitting "The Trustees of the Presbytery First Department, March, 1910. [Vol. 137. of New York" to intervene and become a party to the proceeding. The order was made after the court, for its own information, had ordered a reference to take testimony as to the right of the intervenor to come into the proceeding. The Westminster Presbyterian Church of West Twenty-third Street was a consolidation, in the year 1899, of two churches, and until March 18, 1908, was connected with and under the ecclesiastical control of the Presbytery of New York, subject to the discipline, rules, usages, laws and book of government of the Presbyterian church in the United States of America. The trustees of said church, as a corporate body, independent of but clearly affiliated with the religious organization, held the property now sought to be sold and which was used by the congregation for church purposes. The intervenor is a domestic corporation organized under chapter 206 of the Laws of 1867, with power to take for religious and charitable purposes and to hold, convey and otherwise dispose of real estate and personal property for the benefit of the Presbytery of New York in the promotion of the Presbytery's different charitable and religious purposes. On March 17, 1908, the Presbytery of New York dissolved the religious organization known as the Westminster Presbyterian Church of West Twenty-third Street, and it thereupon ceased to be a part of the Presbyterian denomination and a Presbyterian church. That action appears to have been affirmed by the several appellate tribunals of the Presbyterian church. This action we accept as final and conclusive. (Watson v. Jones, 13 Wall. 679.) It is not questioned that the petitioner, as a secular corporation, still holds title to the real estate in question, but it is the contention of the intervenor that such property is held under such conditions and is impressed with such trusts that the Presbyterian church has become the beneficial owner and that the intervenor, as the corporation vested by law with the title to and the right of possession and control of the property of the church in this jurisdiction, is entitled to the possession and control of the real estate held by the petitioner. This contention raises a very interesting question and one which is by no means free from doubt. Prior to 1875 a religious corporation in this State held its temporalities wholly free from the dom. ination of any ecclesiastical authority and by a tenure so independent that it could change its creed and denominational character without App. Div.] First Department, March, 1910. losing its hold upon its property. (Per FINCH, J., in Matter of First Presbyterian Society of Buffalo, 106 N. Y. 251.) In 1875, by section 4 of chapter 79 of the laws of that year, a marked change was effected in the law by which the denomination was made the dominant body in the church, and the trustees of every church, congregation and religious society were required to hold the property and administer the temporalities "according to the discipline, rules and usages of the denomination to which the church members of the corporation belong," and were forbidden to divert it to any other purpose. This act has been amended from time to time without, however, altering its general purport and now constitutes subdivision 3 of section 69 of the Religious Corporations Law. (Consol. Laws, chap. 51 [Laws of 1909, chap. 53], § 69, subd. 3; revising Gen. Laws, chap. 42 [Laws of 1895, chap. 723], § 46, subd. 3, added by Laws of 1902, chap. 97.) The complete effect of this change in the law has never been judicially determined, although the Court of Appeals in the case above cited recognizes the fact that it was the intention of the Legislature to restrain in some degree the diversion of church property from one sect to another. The contention of the intervenor is that the only Presbyterian church known to the law is that represented in this State by the Presbytery; that the petitioner has been excluded from that church, and that the property sought to be sold cannot lawfully be diverted to the use of any religious body not constituting a part of the Presbyterian church. Without express ing or intimating any opinion as to the soundness of this contention it is apparent, to say the least, that it is arguable and one which should not be determined upon a motion of this character. It appears that upon the expulsion from the Presbyterian church of the petitioner as a religious body, the Presbytery of New York took possession of the church property, organized a congregation and appointed a minister and now occupies the property, so that its use for religious purposes is not interrupted. It also appears that two actions are now pending, both involving the right of possession and control of the church property. In one of these, more appropriately than in the present proceeding, can the conflicting claims of the petitioner and the intervenor be determined. We are, therefore, of the opinion that the court should not give its assent to a First Department, March, 1910. [Vol. 137. sale while these claims remain undetermined, but that the proceeding should be stayed or suspended until these matters are definitely determined. The orders should be affirmed, with ten dollars costs and disbursements. INGRAHAM, P. J., LAUGHLIN, CLARKE and MILLER, JJ., concurred. Orders affirmed, with ten dollars costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM SPRINGER, Appellant. First Department, March 24, 1910. Evidence- larceny - return of stolen property - admissions as to former conviction - when error not cured. In a prosecution for grand larceny it is error to admit evidence that the stolen property was returned to the complaining witness by an unidentified woman not shown to be connected in any way with the defendant. So, too, it is error to allow the police officer who arrested the defendant to testify that he admitted that he had been formerly convicted if the defendant gave no evidence of his good character. The error is not cured because the court at a later stage of the trial struck out the evidence, and especially so where counsel for the People in summing up alluded to the failure of the defendant to testify in his own behalf. APPEAL by the defendant, William Springer, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 23d day of April, 1909, convicting the defendant of the crime of grand larceny in the first degree, and also from orders denying his motions for a new trial and in arrest of judgment. Clark L. Jordan, for the appellant. Robert C. Taylor, for the respondent. SCOTT, J.: Defendant appeals from a judgment convicting him of the crime of grand larceny. The offense charged in the indictment consisted of stealing a ring and a sum of money from the person of one |
