Summary
In Muck v. Hitchcock (supra, at p. 289) the Court of Appeals said: "The facts which give rise to such questions were not pleaded, or proved, or found by the trial judge, and for that reason the questions are not before the court.
Summary of this case from Sahoff Corp. v. May Company Real Estate, Inc.Opinion
Argued May 14, 1914
Decided July 14, 1914
Milton E. Gibbs and Maurice G. Ellenbogen for appellant. Albert C. Olp for respondents.
Section 12 of the Religious Corporations Law (Cons. Laws, ch. 51), provides as follows:
"§ 12. A religious corporation shall not sell or mortgage any of its real property without applying for and obtaining leave of the court therefor pursuant to the provisions of the Code of Civil Procedure," etc.
It has been held that broad words in a statute conferring powers and privileges on "a corporation" or on "any corporation" apply only to corporations organized under the laws of this state. "The legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, define and control." ( Matter of Balleis, 144 N.Y. 132, 133; White v. Howard, 46 N.Y. 144, 165; Colquhoun v. Heddon, L.R. [25 Q.B.D.] 129; Saltmarsh v. Spaulding, 147 Mass. 224; United States v. Fox, 94 U.S. 315; Alfred University v. Hancock, 69 N.J. Eq. 470; Vanderpoel v. Gorman, 140 N.Y. 563.)
In my opinion the words of section 12 of the Religious Corporations Law should be limited in like manner to domestic corporations. The object of the state in requiring a religious corporation to obtain leave of the court before conveying its real property, is to protect the society and its members from loss through unwise bargains, and to prevent perversion of the association's property. The state owes no service of that kind to foreign corporations. Indeed, it would be impracticable for the courts of this state to exercise such visitorial power over a foreign corporation. Our courts do not know the needs of the foreign association, and they cannot determine with any satisfaction, as the statute requires (General Corporation Law [Consol. Laws, ch. 23, § 73), whether the interests of the association will be promoted by the sale of its land in this state or not, nor can they with any satisfaction direct what disposition shall be made of the proceeds of sale. Furthermore, after the sale, the courts of this state would in most cases lose jurisdiction of the foreign corporation and its property. The power of visitation over foreign corporations can be exercised effectually only by the courts of the association's domicile. For these reasons, I think it should be said that the law of this state, prohibiting religious corporations from selling their real property without leave of the court, does not extend to foreign corporations.
It is, however, argued on behalf of the defendants that under section 21 of the General Corporation Law, the Millennial Association could not convey its land without leave of the court. Section 21 reads thus:
"§ 21. Any foreign corporation * * * may take by devise any real property situated within this state and hold the same for not exceeding five years * * * from the time when the right to the possession thereof vests in such devisee, and convey it by deed or otherwise in the same manner as a domestic corporation."
The defendants rely upon the final words of this section, which read thus: "and convey it by deed or otherwise in the same manner as a domestic corporation." The argument is that this clause requires a foreign religious corporation to obtain permission of the court before conveying its real property in this state the same as a domestic corporation.
Section 21 includes all classes of foreign corporations, and is not confined to those formed for religious or similar purposes. The statutes of this state prescribe certain solemnities which shall attend the transfer of title to real property, and it was those solemnities and nothing more that the legislature had in mind. ( Saltmarsh v. Spaulding, supra; Hosford v. Nichols, 1 Paige, 220, 226.)
The same reasoning upon which it has been said that the visitorial power of the court over religious corporations applies only to corporations formed under the laws of this state leads to the conclusion that the sanction of the court is not necessary to authorize the conveyance by a foreign corporation under the General Corporation Law.
It is only by grace of section 21 of the General Corporation Law that the Millennial Association could take and hold the land devised to it. The legislature could, of course, impose any condition it saw fit upon the right of the association to so take and hold the property. ( Christian Union v. Yount, 101 U.S. 352, 354.) The condition which the legislature imposed was that the association should dispose of the land within five years. That condition was not made dependent in any degree upon obtaining leave of the court to convey.
The defendants further contend that if the statutes of this state do not apply, still the Millennial Association could not at common law convey its land without leave of the court ( Madison Ave. Baptist Church v. Baptist Church in Oliver St., 46 N.Y. 131; Dudley v. Cong. of St. Francis, 138 N.Y. 451), and the presumption being that the common law prevails in Massachusetts, permission of the court was necessary before the Millennial Association could execute a conveyance under its contract with the plaintiff.
It may be doubted whether the common law, which is the same in effect as section 12 of the Religious Corporations Law, would apply to a conveyance required by section 21 of the General Corporation Law. It may also be doubted whether the law of Massachusetts, whatever it may be, can control or regulate the ownership and transfer of land in this state under the circumstances here presented. ( Nicholson v. Leavitt, 4 Sandf. 252, 276; Hosford v. Nichols, 1 Paige, 220, 226; Boyce v. City of St. Louis, 29 Barb. 650, 652; M'Cormick v. Sullivant, 10 Wheat. 192; Goddard v. Sawyer, 9 Allen, 78; Thompson v. Swoope, 24 Pa. St. 474; White v. Howard, 38 Conn. 342.)
However, it is not necessary to pass upon those questions now, nor upon the question as to the power of the Millennial Association under its charter to convey land. The facts which give rise to such questions were not pleaded, or proved, or found by the trial judge, and for that reason the questions are not before the court. ( Gordon Malting Co. v. Bartels Brewing Co., 206 N.Y. 528; Harris v. White, 81 N.Y. 532, 544; Monroe v. Douglass, 5 N.Y. 447; Portsmouth Livery Co. v. Watson, 10 Mass. 91.)
I, therefore, recommend that the judgment appealed from be reversed and a new trial granted, with costs to abide the event.
CHASE, COLLIN, HOGAN, MILLER and CARDOZO, JJ., concur; WILLARD BARTLETT, Ch. J., concurs in result.
Judgment reversed, etc.