Burke v. Rector, Churchwardens & Vestrymen of Trinity Church

Greenbaum, J. Although the allegations of the complaint in the main are directed to the alleged grievances of the plaintiffs, based upon the contemplated action of the defendants to close St. John’s Ohapel, which it is sought by this suit perpetually to restrain, it is difficult to avoid the conclusion that the plaintiffs also seek by the complaint to compel an accounting on the part of the vestry, the individual defendants, of the property of the corporation, its “ revenues and all payments therefrom for such a period as to the court shall seem proper.” It is apparent that the allegations hearing upon an accounting are in nowise related to those affecting a cause of action seeking to restrain the closing of St. John’s Ohapel, and their presence in the complaint, coupled with the prayer for relief for an accounting, may only be reconciled upon the theory that the pleader has attempted to set up at least two separate causes, of action. An action for an accounting necessarily is against the individual defendants, the vestry, in the right of the defendant corporation, and can only be maintained by the plaintiffs if a state of facts is shown tantamount to a refusal on the part of the corporation to institute suit against the vestrymen. The cause of action which seeks to prevent the closing of St. John’s Ohapel primarily is against the defendant corporation for an alleged invasion of the rights of the plaintiffs. The union of a cause of action against the defendant corporation with one against the vestrymen, the individual defendants, and not arising out of the same transaction, presents an incongruity justifying a demurrer for misjoinder of causes of ac [382] tion. People v. Equitable Life Assur. Society, 124 App. Div. 714, 729. But aside from this, it requires very little consideration to conclude that the complaint fails to state a cause of action for an accounting. There is no allegation of a demand for an accounting, and the complaint is barren of any allegations of fact showing what steps, if any, had been heretofore taken by or on behalf of the plaintiffs requiring the details and data of the moneys received and disbursed by the vestry in past years, nor is there any suggestion that the accounts that have been kept were in any respect untrue, incomplete or false. As to the demurrer to the amended complaint for insufficiency in setting up a cause of action for an injunction against the closing of St. John’s Chapel, it seems to me proper to regard the law of this case as laid down by Mr. Justice O’Gorman upon the denial of the motion for the continuance of the temporary injunction (63 Misc. Rep. 43), and affirmed by the Appellate Division. Mr. Justice O’Gorman held “ that the plaintiffs have presented no case of which a court of equity will take cognizance,” and it has not been pointed out in what respects the amended complaint differs from the complaint considered by the learned justice. I am therefore constrained to abide by the law of the case thus far decided. The demurrers must be sustained, with costs, and with leave to the plaintiffs to amend- upon payment thereof. Demurrers sustained, with costs, with leave to plaintiffs to amend upon payment thereof.