The Rector v. . Crawford

*478 Rapallo, J. The right of the church to claim the fund in question from its treasurer did not depend wholly upon the question whether the fund was raised by authority of the church as a corporation or whether the persons who were instrumental in raising it and those who collected it intended that it should become the property of the church. Though the subscription may have been set on foot without authority from the church as a corporation, yet if the money was raised apparently as a church fund, and the donors, at the time of giving, supposed that they were giving to the church and intended so to do, the church could adopt the acts of those who raised the fund and claim the benefit of the donations, provided it had corporate capacity to receive the donations for the purpose for which they were given. The church as a corporation was expressly empowered to accomplish the precise purposes for which this fund was raised, by section 2 of chapter 122 of the Laws of 1850, as amended by section 2 of chapter 235 of the Laws of 1860. There was evidence in the case tending to show, if not conclusively proving, that it was held out to the subscribers that the sums subscribed were to belong to the church, to be applied by it to these specific purposes. The circular soliciting subscriptions states that the teachers of the Sunday-school attached to the church have taken in hand the erection of a parish school-house and free chapel, and the persons signing the circular solicit subscriptions to a fund for that purpose. These signers include the treasurer and members of the finance committee, and the rector of the church. The circular does not in terms state to whom the fund is to belong or in whom the title to the school-house is to be vested; but attached to it is a notice that receipts signed by the finance committee will be sent to the donors for each payment made, and this notice is signed by the treasurer and finance committee of the church in their official names. The subscription list presented to the subscribers for signature, and to which their names are subscribed, is headed *479 “ Subscriptions and donations to the Sunday-school Building Fund. of the Church of the Redeemer.” This certainly indicates that the fund was subscribed as a fund of the church, and not of any separate organization. The teachers, or their friends, who are now claimed to be the parties to whom the gifts were made, were not organized into any society or corporation capable of carrying out the proposed enterprise; nor was there any evidence of any such organization having been contemplated; and by reference to the Laws of 1850, chapter 122, section 2, and Laws of 1860, chapter 235, section 2, it will be seen that the consent of the vestry, or trustees of the church, was required for such a separate organization. The church was duly organized, and especially empowered to carry out the plan; and in the face of the statement that the fund was to be a building fund of the church, and that receipts for all payments to the fund were to be given by the finance committee of the church, it is difficult to see how the subscribers could have had any understanding, other than that they were subscribing to a church fund, to be raised for a purpose specially authorized by the law of its incorporation. The payments were made to the proper financial officer of the church, and if made by parties intending that they should go to the church, no private intentions of the treasurer, or the individuals so ojserating with him, could defeat the gift, if claimed by the church. And if the gifts, at the time they were made, were intended to be made to the church, no subsequent directions of the donors themselves, could relieve the treasurer of his duty to pay over the fund, unless such directions were shown to have been given before any acceptance by the church. An understanding that this fund was to be kept separate from the general funds of the church, is in no manner inconsistent with its being a church fund. The point that this fund did not belong to the church, seems to have first occurred to the defendant after he left the church. *480 On the 10th of April, 1860, when applied to by a member of the finance committee of the church, to be informed in what bank the fund was deposited, the defendant wrote in reply, that the money was loaned on bond and mortgage on property in Westchester county, subject to be called in at any time, and that, if the committee desired the money returned, he was prepared to return it immediately. He clearly understood at that time, that he held the fund subject to the order of the finance committee, and it further appears in the evidence, that the mortgage spoken of was taken by him in his official capacity of treasurer. But afterward he took the ground, that the church had no title to the money, and that he was accountable only to the contributors. He does not even admit an accountability to the finance committee, who, according to the terms of his circular, were to give receipts for it to the donors. The defendant also claims, that he is discharged from liability to the church by reason of a settlement of his accounts as treasurer by the finance committee, and the payment over to his successor of the sum of $19.50, as the balance of his accounts. It is not pretended that the fund in question was accounted for in that settlement, but, on the contrary, the defendant testified that nothing was said about it at the time. This settlement, he says, took place at the time he ceased to be treasurer. It appeared in the evidence that he so ceased in May, 1860. But a short time previously, viz., April 1,0, 1860, he had accounted specifically for this fund by informing the finance committee that it was invested on bond and mortgage, and would be paid over when required. The mortgage stood in his name as treasurer. A transfer of that mortgage was the proper mode of settling this matter, and there was no occasion to refer to it in the settlement of his cash account when the $19.50 was paid. That accounting, and the omission to refer to the fund in question, could not be deemed a discharge from liability for that fund, in view of the condition in which the very recent correspondence had left that subject. *481 We think that the judge erred in instructing the jury, as matter of law, that the fund did not belong to the church, and in directing a verdict for the defendant. The church has adopted the acts of its treasurer and rector in collecting the fund. The vestry claimed and obtained the portion of the fund from the rector, when he separated from the church, and by this action, as well as the previous demand, they have claimed the portion received by the treasurer. The church will of course take the fund for the specific purpose for which it is donated, and have no right to apply it to any other. Should that purpose be abandoned, the donors will have the right, if they so elect, to demand its restitution to them by the church. The judgment should be reversed, and a new trial ordered, with costs to abide the event. Church, Ch. J., Grover and Peckham, JJ., concur; Allen and Folger, JJ., dissent; Andrews, J., absent.