The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-11-03
The John street Church Co ntroyersv-r-
portant Opinion.


The John street Church controversy-Km-
pOrtant Opinion.
SUPREME COURT-sPEcIAL TERN
Before Hon. Judge Sutherland
Nov. 2--Te Beekn,om Fire Insurance Comnanv nao,.
The First kehodia Episcopal Church in the Csp of Nen
York Implicated Nth OAeys-The assignment Of The bona
and mortgage 10 the plaintiff s face an absouta
assignment without reservation, condition trust On
der such assignment and the absolute unconditional
owner and holder of the mortgage, the plaintiff COM
menced this action Of foreclosure by the decree n which
| the whole amount remaining due and unpaid on the
mortgage to be paid TO the plaintiff out Of tho
proceeds of tho sale Of the mortgagcd prennssz
the defendantsthe First Methodist Episcopal Ohurch
making no defence and putting in NO answer
The proceeds Of the sale Of the mortgased pre-
mses were more than sufficient to pay lie nrri
| gage and the costs Of the action After dscree
and sale the defendant-the church--appKes 70 The
assignment to the plaintiff was not ia fact or N
equity absolute, but that the mortgage was assigned
TO the plaintiff as security for moneys paid and ad-
vanced, and to be paid and advanced by the plain
t 70 and for the said church. and that the whole aouat
which had been paid and advanced by the plain was
gsge for which the plaintiff has got the decree This
being admitted By the plaintiff and the parties concsdng
that the plaintiff had SO paid and advanced different
times and In various sums the amount OF g. Goa ca
prior May 2 1857 and the further Of q S 90 on
ordered by the Court paid 10 the plaintiff out Of the
moneys arising from the sale, and the plaintiff claiming
further sum Of o. $780, with interest a. debt Justly dus
and owing from the church 70 the plaintiff assignee Of
debt disputed by tho church. The Court ordered
reference To ascertain, between the plaintiff and the
church to whom the residue Of such moneys belonged and
ought TO be paid After paying the plaintiffs tho 30
conceded to have been advanced with interest," the resi-
due Of the money directed TO be paid to the pnan By
the decree about 50 800 The referee reports that
the OF % 500 belongs the plaintiff with interest
from the 10Th of January, 1885, and that the pan ia
entitled to be paid that OF the residue Of mo-
neys remaining In the referees hands To this report
and conclusion Of the referee the church excepts the
S. $50, with interest debt Justly due and owing from
The church to the plaintiff am Of the opinion tSat Tia
referee was right in his conclusion and that hs report
should be confirmed &c who asks for eauity must DO
equity; and there being contestng creditors surely
the church owes the plaintiff the So 500 with Interest," it
would be equitable for them to pay What be
the order the be paid over 70 tho church
# the church ought Immediately to pay back againP
Justly due and owing from the church 70 the painNn.
On the part of the church, it is insisted that "
the alleged assignment to the plaintiff absolutely owing
and payable by tho church to any person persona;
and thus debt hat was not owned sd hsM SV pen
son and Cies the assgnors, At the time Of their alleged
assignment Of It 70 the plaintiff and therefore did pass
10 the plaintiff under the assignment; third debt
soutey payable and owing TO Benson and Gies that tho
plaintiff not authorized by their charter purchase
not enforce the claim: think at the time of the assign
nent to the plaintiff the IS 800 absolutely owing and
payable by the church to Benson and Giles individually
and that tho right Of action in them alone rs udi
viduas not "oard Of Trustees Of said church
the s Of january 1853 sss s
church no as tue c corporation OF the nrst part,
sentns the Board Of Trustees Of said church of
the up town party Of said church, Of the second part
the church as the corporation agreed to pay $50 the party
Of the second part the sum Of for the expenses Il
the said town Boarj said payment be made 70 said
Benson" BY distinct and separate article Of said
down town Board said up town Board shall render true
and Just account Of the property in their hands, and
also Of all sums paid by them for property or on
Of said church In John street," and by another distinct
the party Of the second part should transfer and deliver
to the party OF the first part "au the property goods
quired BY of their connection with said church,
and while acting or processing to act for said church
&C. By ,eciia as contained u said agreement APP
First Methodist Episcopal church Of the city Of New
York. which had been productive Of serious and proac
% htgaaon, and that several suits were then pend
ing between parties known tho down and the up
town parties or BY persons claiming 70 represent said
view 70 settle such suits and difficulties and put final
end TO all controversy Now whether the s. payable
cond part, and the claim for which was assigned by
Benson and Ges to the plaintiff absolutely owing and
payable ny the church q The time Of the assignment to
men The counsel for the church that the
ment 70 the and the agreement render the
account and to transfer and deliver the property are de-
pendent each other and that the 500 was not paya
ble and no action could be brought the same
the proofs Sg e se
rec show that the property transferred and delivered
in pursuance Of the agreement prior 70 the assign
ment to the plaintiff but IL appears that the &C.
whether Benson and G.lIes or the up town party had
ever offered &c render it. or the church, the trustees of
tne Church had ever demanded il tho testimony
70 pay the IS 500 and render the
nced to think ao that eycn oas The
and delivery OF the property was mot condition precedent
was TO be paid or the expenses of the up board
not for the property the delivery Of the property
the account the rendering tho account account
board and not for the $780, think the $500 was
payable absolutely forthwith Mt least demand and
necessary before there was !. o. make
the demand that the proofs establish that the property
transferred and delivered pursuance Of the agree
ment. The So 500 then owing aud payable abeo-
lusely of the time of the assignment To whomY Who
had right TO assign the claim TO the PLAINTIFF Benson
Of Trustees Of the town party, Of Which Benson and
GlBes were twoS I think Benson and Gibes were the
dyiduany to assign TO e plaintiffs Tho agreement Of
the leh Of January must be considered entered into
y. Tho church, represented by Richard Keeping, Pes
don't Of the Board Of Trustees and Barton Wood Of
by resolution Of e Bosrd Of
tered into the agreement tho church corporation.
s %
Of the uptown party acknowledged the downtown par
To-, the Board Of Trustees OF the down party.
be the church corporation TO represent the church
corporation. Both Of the antsgonistic divisions could
not be, represent the church corporation each %
the excursion Of the other follows that the statement
Of the representative character or capacity in which Ben
and Glies entered into the agreoment must be
sidered words Of description Of them ndivi
duas and tho contracting parties Of the second part,
and not showing that they contracted the agents Of
the uptown party Of the Board Of Trustees Of tho
uptown party who, not being incorporated as party. or
the Board OF Trustees Of party capable Of nei
owing and payable to Benson and Gllies and was
asagnable not only in equity but at law. The only re-
naming question 49, Could the plaintiff purchase this claim
and take assignment OF ~ They incorporated
under the general for the Incorporation Of insurance
companies. BY the act they are allowed to invest
bond and mortgage. I am Of the opinion that, under
tho circumstances ef the the plaintiffs having alb
souts assignment Of the whole mortgage that the
chase Of the claim by them must be considered an In
vestment boud and mortgage They bought tho claim
and took the assignment supposng that the payment Of
secured by the mortgage assigned TO them by tho