NEW YORK SUPREME COURT NEW YORK COUNTY SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX CHURCH IN NORTH AMERICA PLAINTIFF, V. JOHN KEDROFF, ET AL., DEFENDENTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP60-00442R000100110003-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 185
• Document Creation Date: November 17, 2016
• Document Release Date: April 21, 2000
• Sequence Number: 3
• Publication Date: February 18, 1948
• Content Type: COURTFILE

Approved Fo`r Release 2000/08/26 :CIA-RDP60-004428000100110003-9
,~e~n god 6upreme court
SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN
ORTHODOX CHURCH IN NORTH AMERICA,
Plaintiff,
JOHN KEDROFF, et al.,
Defendants.
DECISIONS
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
TABLE OF CONTENTS.
Supreme Court, New York County, 192
Misc. 327 -------------------------------------------------------- 1
Opinion of Botein, J --------------------------------- 1
Appellate Division, First Department, 276
App. Div. 309--------------------- ---------- ------------ 10
Opinion of Callahan, J--------------------------- 10
Dissenting opinion of Van Voorhis, J. 25
Court of Appeals, 302 N. Y. 1---------------------- 60
Opinion of Conway, J----------------------------- 62
Concurring opinion of Froessel, J..-...--. 101
Dissenting opinion of Desmond, J.... ..- 104
United States Supreme Court, 344 U. S. 94 118
Opinion of Reed, J----------------------------------- 118
Concurring opinion of Frankfurter, J. 146
Dissenting opinion of Jackson, J--------- 151
Court of Appeals, 306 N. Y. 38-------------------- 158
Opinion of Conway, J----------------------------- 160
Dissenting opinion of Desmond, J......... 179
United States Supreme Court, per curiam,
346 U. S. 893-------------------------------------------------- 183
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
192 Miscellaneous 327
SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHO-
DOX CHURCH IN NORTH AMERICA, Plaintiff, v.
JOHN KEDROFF and BENJAMIN FEDCHENKOFF, as
Archbishop of the Archdiocese of North
America and the Aleutian Islands of the Russian
Orthodox Greek Catholic Church, Defendants.
SUPREME COURT,
TRIAL TERM-NEW YORK COUNTY.
February 18, 1948.
ACTION in ejectment.
RALPH MONTGOMERY ARKUSH and ROBERT H.
KILRoE for plaintiff.
PHILIP ADLER for defendants.
BOTEIN, J. In 1925, the Appellate Division of
this Department held that one John S. Kedrovsky
was the accredited Archbishop of the North Amer-
ican Diocese of the Russian Orthodox Church and
as such entitled to occupy the Cathedral of St.
Nicholas in New York (Kedrovsky v. Rojdesven-
sky, 214 App. Div. 483). Its determination was
affirmed without opinion by the Court of Appeals
(242 N. Y. 547).
Kedrovsky had sought to prevent the defendant
Rojdesvensky who likewise claimed a valid ap-
pointment as Archbishop of the North American
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
2
Diocese, from occupying the Cathedral. The com-
plaint asserted that the defendants were not the
archbishop and dean of the church, and that by
their occupancy 6 hey were diverting the property
of the church from the trust to which it was sub-
ject, that is, occupancy by the accredited arch-
bishop and dean, The complaint took the form
of an action for the enforcement of the trust upon
the real property occupied by the defendants.
In arriving at this decision the Appellate Divi-
sion found that none of the bodies purporting to
recognize Rojdesvensky as an archbishop was
shown to have bad any authority to appoint an
archbishop. The'court, on the other hand, found
that Kedrovsky Was appointed by the Holy Synod
and that this body derived its powers to make a
valid appointment from a legally convoked Sobor,
or ecumenical convention, of the church, held in
Moscow in 1923. "As to Kedrovsky's authoriza-
tions from the Holy Synod there is no dispute
whatever. The Holy Synod has authority to
appoint an Archbishop for North America and a
delegate of the Holy Synod" (p. 488).
The court therefore concluded (p. 489) : "To
set aside the actions of the second Sobor under
these conditions iii favor of the shadowy claim of
the defendant Rojdesvensky, on the theory that
the doctrinal necessities of the Russian Church
require it, would put .a civil tribunal of New York
in ascendancy over the ecclesiastical authority in
the decision of a. purely ecclesiastical question
with which it can have no concern."
In making this determination, the courts were
applying well-defined principles enunciated in the
leading cases of Wotson v. Jones (13 Wall. [U. S.]
679) and Trustees; of Presbytery v. Westminster
Church (222 N. Y.' 305). Each of these cases, as
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
well as the instant one, grew out of a schism
"which has divided the congregation and its offi-
cers, and the presbytery and synod, and which
appeals to the courts to determine the right to the
use of the property so acquired (Watson v. Jones,
supra, p. 726). Both leading cases, as well as the
instant one, involved the third of the three classes
of eases discussed in Watson v. Jones. "It is the
ease of property acquired in any of the usual
modes for the general use of a religious congre-
gation which is itself part of a large and general
organization of some religious denomination, with
which it is more or less intimately connected by
religious views and. ecclesiastical government"
(p. 726).
. In laying down the rule governing such cases,
the. Supreme Court, in Watson v. Jones, avowedly
departed from the doctrine of the English courts.
It held:: "In this class of cases we think the rule
of action which should govern the civil courts,
founded in a broad and sound view of the rela-
tions of church and state under our system of
laws, and supported by a preponderating weight
of judicial authority is, that, whenever the ques-
tions of discipline, or of faith, or ecclesiastical
rule, custom, or law have been decided by the
highest of these church judicatories to which the
matter has been carried, the legal tribunals must
accept such decisions as final, and as binding on
them, in their application to the case before them"
(p. 727). "It is of the essence of these religious
unions, and of their right to establish tribunals for
the decision of questions arising among them-
selves, that those decisions should be binding in
all cases of ecclesiastical cognizance, subject only
to such appeals as the organism itself provides
for" (p. 729).
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
In Trustees of Presbytery v. Westminster
Church (supra) the Court of Appeals rejected
"the claim of ddfendants in substance that they
will be obeying ail the requirements of denomina-
tion uses if they devote the property in their
custody to the observance and propagation of
what may be regarded as the general, fundamental
principles of the Presbyterian faith, although
they secede from the church organization at large
with which they have been affiliated and utterly
refuse to obey its government or be bound by its
rules and regulations" (p. 313). The court went
on to say: "Expressed in another form defend-
ants' claim is that they can utilize the church
property of which they hold title for the mainte-
nance and support of an 'independent' Presby-
terian church-a church free from and independ-
ent of any government or control of the Church
at large. *` .. We do not accept this view."
The opinion rendered in Kedrovsky v. Rojdes-
vensky (214 App', Div. 547, supra), over twenty
years ago, whip not citing these authorities,
groups itself logically in the pattern they set. It
simply directed that occupancy of a cathedral
built in 1903, foxy a diocese established in 1793,
with funds furnished in large part by the Russian
Orthodox Churchl, in Russia, should be given to
an archbishop duly appointed by that church-
not to an archbishop deriving his authority from
a convention held in Detroit in 1924, which, as
the court put it, 'purported to secede from the
Russian Church and to make Rojdesvensky arch-
bishop of an independent church" (p. 487).
It is in this setting that we must consider the
facts which have transpired in the ensuing twenty-
odd years and which have led to the institution of
this lawsuit.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Following final court determination of his right
to occupancy, Kedrovsky entered into possession
of the cathedral. The plaintiff corporation, which
was incorporated by special act of the Legislature
in 1925, and claims legal title to the cathedral, per-
mitted him to remain in possession until his death
in 1934. The plaintiff corporation likewise made
no effort to oust Kedrovsky's son, Michael J. Ked-
roff, who claimed to have succeeded him as ruling
archbishop, and he remained in possession until
his death in 1944. During this period the breach
still existed between those who acknowledged the
spiritual leadership of the patriarch in Moscow,
but who asserted and maintained autonomy in all
other regards, and those who subscribed to the
administrative as well as spiritual leadership of
the patriarch and holy synod. The head of the
first group is Metropolitan Theophilus ; the latter
group is headed by the defendant Metropolitan
Benjamin.
This is an action in ejectment, tried before the
court without a jury. The plaintiff, claiming to be
the owner in fee, seeks immediate possession of
the cathedral, which it asserts is being unlawfully
withheld from it by the two defendants. We need
only determine the rights of one defendant, Metro-
politan Benjamin, as the other defendant con-
cededly derives whatever rights he might possess
through the former.
The defendant, by way of separate defenses,
alleges that as accredited Archbishop of the North
American Diocese he is entitled to possess, occupy
and use the premises, that the plaintiff has no
authority to bring this action, and that the action
is barred by the Statute of Limitations and by
the plaintiff's laches. At the conclusion of the
trial the defendant also urged that the plaintiff's
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
title to the property involved is defective and that
it had failed to prove the necessary ingredients of
an action in ejectment.
Ejectment is a proper form of action for the
determination of the right of possession of prop-
erty held or claimed by a religious corporation
(Westminster Presbyterian Church v. Trustees
of Presbytery, 170 App. Div. 439). The plaintiff
in this case holds title to the cathedral for the
benefit of the North American diocese and of the
ecclesiastical dignitaries entitled to possession
(Kedrovsky v. Rojdesvensky, supra). It, by its
trustees or officers, may bring an action in eject-
ment when, as claimed here, the persons entitled
to possession are alleged to have been unlawfully
ousted and refused re-entry. "The trustees obvi-
ously hold possession for the use of the persons
who by the constitution, usages, and laws of the
Presbyterian body, are entitled to that use. * * *
They have no personal ownership or right beyond
this, and are subject in their official relations to
the property, to the control of the session of the
church." (Watson v. Jones, supra, p. 720.) "They
[the defendants] should be compelled to recognize
these rights, and permit those who are the real
beneficiaries of the trust held by them, to enjoy
the uses, to protect which that trust was created"
(p. 721).
The one issue which looms large in this case is
whether, as asserted by the plaintiff, Metropolitan
Theophilus is the accredited head of the church
in North America, or whether, as claimed by the
defendant Metropolitan Benjamin, he is that head.
The facts in this case parallel, with a fidelity
seldom encountered in litigation, the facts in the
Kedrovsky case. The holy synod was there held
to have had the authority to appoint the ruling
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
archbishop and there was no dispute as to Ked-
rovsky's authorization from that church body.
Likewise, there is no dispute in this case that the
defendant Metropolitan Benjamin was duly ap-
pointed by the patriarch and Holy Synod as rul-
ing archbishop in 1934, following Kedrovsky's
death. It was also held that the group which
"purported to secede from the Russian Church
and to make Rojdesvensky Archbishop of an in-
dependent church" had no authority to appoint
the ruling archbishop. It is this same group
which now purports to designate Metropolitan
Theophilus as ruling archbishop and the plaintiff
corporation, by virtue of such designation, seeks
judgment which in effect would secure possession
of the cathedral for Metropolitan Theophilus.
The plaintiff has, at least inferentially, assailed
the soundness of the findings made by the Appel-
late Division in the Kedrovsky case as to the
canonical validity of Kedrovsky's appointment
and the invalidity of Rojdesvensky's purported
appointment, and asks this court, in substance,
to distill different findings from substantially the
same evidence that was submitted in the earlier
case. This, of course, may not be done, and the
inexorable parallel between the Kedrovsky case
and the instant case would seem immediately to
require judgment for the defendant. However,
intervening legislation must first be considered.
In 1945, the new article 5-C of the Religious
Corporations Law (L. 1945, ch. 693) relating to
Russian Orthodox churches was enacted. This
statute constitutes a legislative recognition of
the historical fact that since 1924, a representative
group of Russian Orthodox churches, formerly
subject to hierarchical administrative and spiri-
tual control of the sacred synod, have asserted
their administrative autonomy and have organ-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 CIA-RDP60-00442R000100110003-9
8
ized an independent Russian church in America.
Accordingly, the statute defines the "Russian
Church in America''' and a "Russian Orthodox
Church" (? 105), provides for the incorporation
of a Russian Orthodox Church (? 106), the man-
agement of its affairs and property (? 107) and
reincorporation of existing incorporated Russian
churches as newly incorporated Russian Orthodox
churches (? 108).
There is nothing in the statute which indicates
a legislative intent to accomplish a transfer of
property of all Russian Orthodox Churches in this
country to the use of the newly recognized "Rus-
sian Church in America." There are no legisla-
tive findings acco panying article 5-C which
might be expectedvere that the Legislature's
intent. It contains none of the bluntness and
direct statement of an expropriation statute such
as the Act of Congress of 1887 recited in Mormon
Church v. United States (136 U. S. 1).
It is urged that the statute inferentially pro-
vides for the dedication and use of the property
of all Russian Orthodox churches for the benefit
of and at the direction of the Russian Church in
America. While the. statute so states (? 107) it
is limited by the definition in section 105 preced-
ing which defines a Russian Orthodox church as
one "founded and established for the purpose
and with the intent of adhering to, and being sub-
ject to the administrative jurisdiction of the
Russian Church in America." When St. Nicholas
Cathedral was "founded and established" there
could have been neither "purpose" nor "intent"
to adhere and to be subject to the "Russian
Church in America", for that church was not then
factually in existence.
All that the new article 5-C accomplished was
to provide a framework for jurisdiction and an,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
thority over churches and their property in accord-
ance with the rules, regulations and usages of the
Russian Church in America (? 107), applicable
only to Russian Orthodox churches which might
thereafter be organized (? 106) or which, having
theretofore been incorporated, should thereafter
be reincorporated (? 108). Since St. Nicholas
Cathedral falls within neither of these categories,
it follows that its use is not subject to the direc-
tion of the Russian Church in America.
This conclusion as to the scope of Article 5-C
of the Religious Corporations Law makes it un-
necessary to consider the question of the constitu-
tionality of the statute as violative of "due proc-
ess" in effecting a transfer of property.
Judgment is accordingly directed for the de-
fendants. Suggestions as to the form and subject
matter of the judgment will be entertained upon
settlement of the judgment. Settle judgment.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
276 App. Div. 309
SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHO-
DOX CHURCH IN No*n AMERICA, Appellant, v.
JOHN KEDROFF and J3ENJAMIN FEDCHENKOFF, as
Archbishop of the Archdiocese of North America
and the Aleutian Islands of the Russian Ortho-
dox Greek Catholic Church, Respondents.
First Department, January 17, 1950.
APPEAL from a judgment of the Supreme Court
in favor of defendants, entered March 8, 1948,
in New York County,' upon a dismissal of the
complaint on the merits by the court at a Trial
Term (BOTEIN, J.), without a jury, at the close
of the entire case.
RALPH MONTGOMERY ARKUSH for appellant.
PHILIP ADLER for respondents.
CALLAHAN, J. This action in ejectment involves
a dispute over the right to possess and use certain
church property known as Saint Nicholas Cathe-
dral of the Russian Orthodox Church located on
East 97th Street in the city of New York. The
dispute has its origin in a break or schism within.
that, church following the Bolshevik revolution.
in 1.918.
Prior to that time the Russian Orthodox Church
was a world-wide religious denomination which
had existed for 900 years with its headquarters
in Russia. It has also variously been known as
the Christian Orthodox Catholic Church of the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
11
Eastern Confession and the Christian Orthodox
Greek Catholic Church.
The adherents of this faith spread to the United
States about a century ago and eventually parishes
were established in the city of New York.
In 1903, the Saint Nicholas Cathedral was
erected with money furnished by the central church
authorities in Russia. It was to be used as the
Episcopal See of the Diocese of North America.
Title to the property was taken by Russian Ortho-
dox Saint Nicholas Church in New York, a cor-
poration organized under the Religious Corpora-
tions Law. Under its charter this corporation
was to be controlled by two trustees who were
to be the Russian Ambassador and the Russian
Consul General to the United States.
The Russian Orthodox Church was a centrally
organized one and the archbishops or metropoli-
tans who occupied the cathedral prior to 1918,
were appointed pursuant to canon law by the
controlling church authorities in Moscow and were
answerable only to such authorities.
Historically the head of the Russian Orthodox
Church was the Patriarch but from the time of
Peter the Great to the Kerensky rebellion the
czars had forbidden the calling of any "Sobor"
which was the traditional convention of church
delegates authorized to elect a Patriarch. As a
result during this long period no Patriarch had
held office and the church was governed by the
Holy Synod, a member of which was the Chief
Procurator, who was the representative of the
czars.
In 1917, the Kerensky government permitted a
sobor to be called in Russia. It elected one Tikhon
as Patriarch. A year or two later the Bolshevik
revolution occurred. Religion was proscribed
and Tikhon was imprisoned.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
12
As a sequence to the antagonism of the Soviet
government to religion and its persecution of
church dignitaries, many of the American ad-
herents of the church decided to separate from
the mother church Administratively though ad-
hering to it spiritually. In 1924, they held an
American "Sobor" in Detroit and selected one
Platon Rojdesvenskyj as American archbishop or
metropolitan. The asserted authority for the
holding of this American diocesan sobor was a
certain ukase-issued by Tikhon from his prison,
bull this decree by its terms would seem to be
limited to dioceses in Russia. In any event the
right of local self-government was clearly a tem-
porary measure effective only until the central
church was restored.'
In the meantime in1923, another "Sobor" had
been permitted to be called in Russia. It selected
a "' locum tenens" or !temporary head of the cen-
tral church. There has always been some dispute
among churchmen as I to canonical validity of this
sobor. About 1924, ne Kedrovsky appeared in
New York claiming to be the metropolitan ap-
pointed by the central', church authorities. Litiga-
tion was commenced in 1925, between the forces
of Platon and those of Kedrovsky over the right
to possess the cathedral which eventually reached
this court and the Court of Appeals (Kedrovsky
v. Rojdesvensky, 214 App. Div. 483, affd. 242 N. Y.
547).
Although Special 'T'erm ruled in that case in
favor of Rojdesvensky and the American group
this court reversed that decision and gave judg-
ment in favor of 1 edrovsky and the central
church enjoining Paton Rojdesvensky from
occupying the cathedral and that judgment was
affirmed by the Court of Appeals. In that action.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
both sides had claimed that the respective arch-
bishops supported by them had been appointed
by the central church authorities. Rojdesvensky
claimed an oral designation by Patriarch Tikhon
and Kedrovsky claimed to have a written appoint-
ment signed by that Patriarch and also that his
appointment was approved by the church digni-
taries elected in the sobor held in 1923. The
canonical validity of that sobor was one of the
issues litigated in the former suit. This court
upheld its validity at least as a de facto "Sobor"
or convention. However, the parties to the pres-
ent litigation all contend that the 1923 sobor was
not canonically valid because, among other rea-
sons, it was not universal or world-wide in
character. We do not see that this question of
validity of the 1923 sobor alters the weight to be
given to the earlier decision. The principle that
controlled that decision was that the right to ap-
point the American archbishop was vested in the
central church authorities.
After the decision in the earlier case by Special
Term and before it was reversed by this court, a
special act was adopted by the Legislature (L.
1925) ch. 463) incorporating plaintiff. This act
provided that Russian Orthodox Saint Nicholas
Church in New York might convey the cathedral
property to plaintiff which was controlled by
Platon Rojdesvensky and his followers in the
American church. Thereafter a deed was executed
purporting to convey the cathedral property from
the old corporation to the new, but this deed was
executed by only one of the two trustees. One of
the issues presented in this case concerned the
validity of that deed. We find, however, that it
is unnecessary to discuss that issue as the ques-
tion of legal title is not controlling.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
14
For twenty years or more after the prior liti-
gation Kedrovsky and his successors continued
to occupy the cathedral on behalf of the mother
church. In 1927, the, Soviet government permitted
the Russian Orthodox Church to resume activities,
but under a pledge of loyalty to the Soviet regime.
In referring to this church as it. existed from
1918 to 1927, the, parties designated it the
"Renovated" church as distinguished from the.
"Patriarchal" church.
In 1945, another 03obor was held in Russia. It
was world-wide in character and some delegates
from the separated American group attempted to
attend it. They did not reach Moscow in time,
apparently due to interference by Soviet civil
officials. But,. a new Patriarch, one Alexi was
elected by this sobor, and the American church
now recognizes him as the spiritual head of the
Russian Orthodox Church. The American church
on several occasions since 1945, has petitioned the
Patriarch to reunite the two churches but has
insisted on the right of the American church to
elect its own archbishop. Up to the time of trial
of this action, efforts to effect reunion continued
but the churches have never been able to agree
on the question of autonomy, the authorities of
the central church in~isting on their right, under
canonical law, to appoint the American arch-
bishop. It appears that in number the adherents
of the American group or church largely exceed
those in this country continuing to be connected
to the Moscow patriarchate, but in a church that
is centrally organized the matter of numbers is
not controlling on questions of church procedure
(TVatson v. Jones, 80 U. S. 679; Zollmann on
American Civil Church Law [Columbia Univer-
sity, 1917], pp. 178-185, 190-193, 197).
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
15
After Platon Rojdesvensky's death in 1934, one
Theophilus was elected American archbishop by
an American convention. Defendant Benjamin
F'edchenkoff succeeded Kedrovsky upon the
latter's death, having been appointed American
archbishop by the central authorities of the church
in 1934. His appointment has since been ratified
and confirmed by Patriarch Alexi. These two
dignitaries are the controlling archbishops in-
volved in the present action which was com-
menced a day beore certain legislation affecting
the issues was enacted jn New York in 1945 (L.
1945, ch. 693).
The present action took the form of a suit in
ejectment and the parties discuss in the briefs the
question of whether such a suit will lie and whether
it i5 barred by the Statute of Liwitations, but we
feel that it is necessary to discuss only the prin-
cip 1 issue as to whether, as contended by plain-
tiff, tho-.archbishop selected by an American con-
vention or, as contended by defendant, the one
appointed by the central church authorities in
Russia had the right to the use of the cathedral.
Special Term decided the issues in the present
case in favor of defendants, representing the
central church, thus following the principle enun-
ciated in Kedrovsky v. Rojdesvensky (supra).
It held that the 1945 statute did not lend any
support to plaintiff's claim of its right to possess
the cathedral. It applied the rule of common law
that whenever a part of a centrally organized
church breaks away to form a new society the
temporalities are to be administered according
to the rules of the ecclesiastical body to which the
church corporation is subject (Westminster
Church v. Presbytery of New York, 211 N. Y.
214), and the further rule of common law that in
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
a centrally organized church whenever questions
of discipline or ecclesiastical rule have been de-
cided by the highest church tribunal within the
church, the civil; courts will treat that ruling as
controlling (Watson v. Jones, supra; Baxter v.
McDonnell, 155 N. Y. 88).
The principal! if not the sole contention ad-
vanced by plaintiff-appellant on this appeal is
that Special Tern misconstrued the 1945 statute.
Before discussing that question we must note
that after the decision by SpecLEal Term the 1945
statute was amended by chapter 711 of the Laws
of 1948. We will assume upon this appeal that
plaintiff is entitled to the benefit of the law in its
amended form (see Gilpin v. Mutual Life Ins. Co.,
299 N. Y. 253).
These two statutes added a new article 5-C to
the Religious Corporations Law, the general pur-
pose of which was to define the Russian Churoh fn
America and to provide a procedure for the incor-
poration of churches to be affiliated with it.
Plaintiff points to several provisions in article
5-C which it contends indicate. that the purpose of
the Legislature was to declare that the American
church has the right of autonomy in its relations
with the Russian', Orthodox Church. It contends
that this statute warrants a judgment in its favor
awarding it possession of St. Nicholas Cathedral.
First, plaintiff points to the provisions of sec-
tion 105 of article 5-C of the Religious Corpora-
tions Law reading: "The `Russian Church in
America', as that term is used anywhere in this
article, refers to that group of churches, cathe-
drals, chapels, congregation, societies, parishes,
committees and other religious organizations of
the Eastern Confession (Eastern Orthodox or
Greek Catholic church) which were known as
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
17
* * (d) Russian Orthodox Greek Catholic
Church of North America since in or about nine-
teen hundred twenty-four; and were subject to
the administrative jurisdiction of the Most Sacred
Governing Synod in Moscow until in or about
nineteen hundred seventeen, later the Patriarchate
of Moscow, but now constitute an administratively
autonomous metropolitan district created pur-
suant to resolutions adopted at a general con-
vention (sobor) of said district held at Detroit,
Michigan, on or about or between April second to
fourth, nineteen hundred twenty-four."
It contends that this constituted a declaration
by the Legislature of this State that the American
church was entitled to autonomy in its relations
with the central church.
While this definitive section is far from a model
of clarity, we find nothing in it to support the
claim of plaintiff that the Legislature intended
to determine the issue of ecclesiastical autonomy
existing between the two branches of the church.
The clause found in the definition is merely de-
scriptive in its historical reference to the admin-
istrative autonomy of the "Russian Church in
America". Section 105 proceeds through sub-
divisions ? I a ", "b" and "c" to refer to the groups
constituting the earlier American church by re-
citing historical events connected with the de-
velopment of the church in America, first as the
American mission of the central church and then
the American diocese of said church. In re-
ferring to the separation of the American church
from the church in Moscow in 1924, subdivision
"d" recites the historical events connected with
that separation and refers to the purport of cer-
tain resolutions adopted at the Detroit convention
for the autonomous status of the separated
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
church. It does not purport, according to our
construction, to set forth any legislative finding
determining the ecclesiastical dispute as to the
right of autonomy. At most it amounts merely
to a legislative recognition of the fact that the
American branch or "Metropolitan District"
asserted its independence in administrative affairs
in. this country. If should not be construed to
mean that the Legislature has taken sides in the
religious controversy as to the right of autonomy,
involving the right) to appoint or elect arch-
bishops dependent a' as it is on the canon law of
the church. Such a construction would show an
intent by the Legislature to interfere in eeclesi-
astical concerns which is hardly within the coin-
potence of legislative action (U. S. Const., 1st
Amendt.; N. Y. Cons't., art. I, ? 3), and certainly
would be a departure from the traditional Ameri-
can principle of separation of church and State.
As was said in McCollum v. Board of Education
(333 U. S. 203, 212), ~n discussing the first amend-
ment of the Federal Constitution: "For the First
Amendment rests upon the premise that both
religion and governrient can best work to achieve
their lofty aims if each is left free from the other
within its respective),, sphere."
Plaintiff then pouts to the provisions of sec-
tion 107 of article 5-C claiming that they indicate
a legislative intention to grant jurisdiction or
authority to the American church over every
Russian orthodox church in the State, even those
established prior to the creation of the "Met-
ropolitan District" and never affiliated with the
new group and to grant control to the American
church over property of churches adhering to
the ecclesiastical statutes or rules of the central
Russian Orthodox 0hurch in Russia.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
19
The provisions of section 107 that every Rus-
sian orthodox church incorporated before or after
the creation of the autonomous "Metropolitan
District" shall recognize and be subject to the
jurisdiction of the governing authorities of the
"Russian Church in America" must be read in
the light of the definition of the "Russian Church
in America" as set forth in section 105. In other
words, it appears to us that it was intended to
mean that any church heretofore or hereafter
incorporated. for the purpose of adhering to the
American church must be subordinate to the rules
and the decisions of the authorities of the govern-
ing bodies of. that church. Surely it was not in-
tended to mean that Russian orthodox churches
formed for the purpose of adhering to the Mos-
cow Patriarchate must be subordinate to the
American church.
The control given trustees of the temporalities
of the Russian Orthodox Church in subdivision 3
of section 107 must be likewise limited. This sub-
division does not purport to grant control to the
"Russian Orthodox Church in America" to St.
Nicholas Cathedral or any other property of the
mother church. The general scope and purpose
of the Religious Corporations Law is to authorize
the creation of religious corporations as secular
agencies to aid in the conduct of church business
and affairs, including the acquisition, holding and
disposal of property (Walker Memorial Baptist
Church v. Saunders, 285 N. Y. 462). But the
State attempts no interference with the practices
and rules of any spiritual body in the matter of its
temporalities. We find no departure from this
general policy in the provisions of Article 5-C.
Subdivision 3 of section 107 simply provides that
the trustees of a Russian orthodox church (mean-
ing Russian Orthodox Church in America) shall
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
20
administer its own temporalities in accordance
with the rules of the "Metropolitan District".
We can find no suggestion in the present article
of any intention to transfer any beneficial interest
of a religious trust in the St. Nicholas Cathedral
to the "Russian Orthodox Church in America"
contrary to the wishes of the supreme ecclesias-
tical authority of the beneficiary church.
That the Legislat re did not intend by these
statutes to strip the Russian or central branch of
the church of its property in New York is further
evidenced by the fact, that in other sections of the
Religious Corporations Law the Legislature has
recognized the mother church in Russia as a living
ecclesiastical body and has granted the Moscow
Patriarchate certain powers with respect to church
affairs (see Religious Corporations Law, ?15, subd.
3; art. 15, as added by L. 1943, ch. 145). That
these separate provisions with respect to the Mos-
cow Patriarchate a d the Russian Church in
America are concurrently carried in the same
statute indicates a legislative. recognition of two
separate and independent churches to both of
which the Legislature has granted the right to
incorporate churches conduct their own affairs
and hold their own temporalities.
This brings us to consider the views expressed
by our dissenting brethren. First, they disagree
with our construction of article 5-C of the Reli-
gious Corporations Law, construing it, as does
the plaintiff, to contain a grant of autonomy and
a declaration in effectithat the American church is
entitled to the tempo>alities of all Russian ortho-
dox churches in this State. We have already
dealt with this subjedt. Then they have taken a
position which we fin4 that plaintiff does not con-
tend for, which is in effect that the Russian Ortho-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
21
dox Church in Russia is not a true church but a
more instrumentality of the Russian government,
made so by the subservience of the high church
authorities to that government and that therefore
the American church is the only true Russian Or-
thodox Church and has the right to possess the
cathedral.. In support of this theory the dissent-
ing opinion proceeds with great vigor to attack
communism, the prevailing political creed in
Russia today, as atheistic and the Soviet govern-
ment as a totalitarian. despotism, and concludes
that in fact no real religious activity would be or
is permitted in Russia. They arrive at the deter-
mination that the present Russian Orthodox
Church is not a real, but merely a sham or phan-
tom, church deprived of all power of action in
respect of its followers and property in America
by duress imposed by the Soviet state.
The dissenting opinion sets forth at consider-
able length the antireligious ideologies of com-
munism, points out and condemns the totalitarian
rule of the Soviet state and then concludes that
any church that has pledged loyalty to such a gov-
ernment is not a true religious organization. The
conclusion drawn is that a judicial finding is war-
ranted that there is no restored Russian Orthodox
Church in Russia today. We concur entirely with
the views of our brethren attacking communism.
We yield nothing to them in their condemnation
of the lack of religious freedom in Soviet Russia,
but we disagree with the conclusion drawn as to
the nonexistence of the Russian Orthodox Church
in Russia, because we believe that we may not
draw that conclusion on this record, even if we
might desire to do so.
We are dealing with a judicial action and we do
not act on suspicion or news reports ; we act solely
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
22
on legal proof. We must consider the contentions
of the parties and the!, proof they have chosen to
submit except as to matters concerning which we
may take judicial notice. Here, both parties have
taken the position that the Russian Orthodox
Church is presently restored in Russia. Plaintiff
introduced proof that since the last World War
greater rights have been afforded to the Russian
Orthodox Church in Russia. Its witnesses recog-
nized the 1945 sobor as authentic and as restoring
the Moscow Patriarchate and accepted the restor-
atio.a of the traditional church as a fact. Plaintiff
makes no suggestion that the restored church is a
new or different church, a more state agency, as
suggested in the dissenting opinion. Plaintiff and
the American Russian church it represents choose
to treat the Patriarchate Alexi as a holy man, a
church leader and the Holy Synod as an existing
hierarchy. The American church has repeatedly
petitioned the Russian church authorities to re-
unite the American church to the mother church.
Right down to the tine of trial of this action,
negotiations were proceeding for this reapproach-
ment. The fact that the mother church was re-
quired to pledge loyalty to the Soviet civil regime
and had agreed not to attack communism from the
pulpit was apparently (considered no obstacle to
reunion. The only factor causing cleavage seems
to be the insistence of the American church on its
right to elect its own archbishop and the refusal of
the mother church to yield that right unless at
least the power of veto of any selectee was re-
served to the high church authorities.
The plaintiff and the American church that it
represents do take the position, as we understand
it, that the "Renovated" church was noncanoni-
cal. But we are dealing with the church since
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
1945. Plaintiff recognizes the domination of the
Soviet civil authorities over the present church
and deplores its pledge of loyalty to the Soviet
regime but concedes nevertheless that the old
Russian Orthodox Church has authentically been
restored at least since the 1945 sobor and is pres-
ently an existing though subjugated church. Per-
haps this belief is fostered in whole or in part
by religious convictions instilled by a faith that
has been accustomed to look up to a mother
church in Russia for the past 900 years. Plain-
tiff and those it represents certainly have the
right to decide whether or not to believe in the
existence of a true church and the genuine spir-
itual qualifications of its hierarchy. That judges
may suspect that the parties have a wrong con-
ception of what is going on in the church in
Russia today is wholly immaterial. The parties
have been in direct consultation with the repre-
sentatives of the church in Russia. Whether
these church heads are truly religious men trying
to keep the faith alive and to serve the religious
needs of their people of Russia to the best of
their ability or whether they are willing and ser-
vile tools of an anti-religious government is not
to be decided by this court adversely to the con-
tentions of the parties on any theory that we
may take judicial notice of actual conditions be-
hind the "iron curtain" in Russia today. Such
matters are not so notorious as to be subject
to the rule of judicial notice.
When we accept the attitude of the parties as
to the existence of a restored Russian Orthodox
Church in Russia today, the issue presented in
this case becomes a simple one and the rule of
law controlling its decision is plain. The law
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
24
requires us to hold that the decision of the church
judicatories on the question of whether bishops
must be appointed or may be elected must be con-
trolling on us, and the right to use the cathedral
would rest in the archbishop selected by those
judicatories.
While the importance of this decision cannot be
gainsaid, we are unable to agree with our dis-
senting brethren as to its scope or effect. It
involves no question of the denial of religious
freedom to any group nor is any group being
ousted from its place of accustomed worship.
The forces behind the plaintiff in this case have
not been in possession of Saint Nicholas Cathe-
dral since the decision in the Kedrovsky case
(supra) almost a quarter of a century ago. The
present determination does not reach beyond the
might to use and control a single church property
built and maintained with funds supplied by the
mother Church in Russia. This decision is at
least partly controlled by New York statute law
which can have no extra-territorial effect. If
and when it should appear that the Russian Or-
thodox Church is no longer existent in Russia
or if and when the Legislature of this State
may make appropriate disposition of property
within this State found to be subject to its con-
trol and disposition, our courts may take other
action. Thus far we find no declaration by the
Legislature and no proof offered to this court that
the trust purposes for which plaintiff holds the
cathedral have been extinguished or terminated.
Meanwhile plaintiff holds at least the nom-
inal legal title to the property involved. For as
long as it may continue to do so the plaintiff
remains in a position to protect whatever claims
the American church may have to the cathedral.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
25
Accordingly, we have reached the conclusion
that the defendant is entitled to prevail.
The judgment appealed from should be affirmed.
VAN VooRHrs, J. (dissenting). The dissenting
Justices concur with the majority, nor is there
disagreement in the court, in condemning the atti-
tude and conduct of the government of the Soviet
Union toward religion. The difference in opinion
relates entirely to whether, in view of the canons,
ecclesiastical practices and history of the Russian
Orthodox Church, the law of New York State
requires that the material possessions of its Amer-
ican branch must continue to be administered from
Moscow while the Patriarch and Holy Synod there
are, as plaintiff contends, dominated and con-
trolled by the Soviet atheistic regime. Our dis-
sent is based upon the view that the law does not
require this result.
The immediate subject of this action is the right
to occupancy and control of St. Nicholas Cathedral
on East 97th Street in New York City. In order
to decide that question, it is necessary to deter-
mine who at this time is deemed to be in adminis-
trative control of the Russian Orthodox Church in
America, since that official is entitled to occupy
and control the cathedral. The outcome of this
suit, therefore, depends upon who is to have
charge of the temporalities of the entire Russian
Orthodox Church on this continent, including
churches, parish houses, rectories and revenue-
producing properties. Plaintiff represents a large
group of Russian Orthodox Churches which have
proclaimed the independence of the American
branch from administrative control by the central
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
church authorities in Moscow while dominated
by the Soviet state. Defendant Benjamin Fed-
chenkoff has been designated by the Patriarch
while under such domination as archbishop and
metropolitan to rule over the Russian Orthodox
Church in the United States and elsewhere in
North America. The autonomous group has cre-
ated no doctrinal seism, and its members desire
to worship in their ancestral churches according
to their ancient forms, but without being subject
to administrative control by a central organiza-
tion which has become subservient to the Soviet
state. The judgment appealed from, in denying
to plaintiff the occupation and control of St. Nich-
olas Cathedral, necessarily determines that plain-
tiff and its affiliated churches to which belong
most of the commun cants of the Russian Ortho-
dox Church in the l Tnited States, have lost the
right to the enjoyment of their properties while
they continue to refuse to recognize the adminis-
trative acts of the Russian central church authori-
ties.
][t seems to us thatinstead of being schismatics,
the group in Americ, to which plaintiff belongs
is adhering, insofar as possible, to the orthodox
tradition, from which the Russian high church
authorities departed when, yielding to force, they
accepted what might be termed the Russian Ortho-
dox Church of the communist obedience. These
ecclesiastical officials in Moscow, having become
in :Pact an instrumentality of the Soviet Govern-
ment, have ceased to function as the church tri-
bunal to which the civil courts must look in order-
ing disposition of temporalities in this country,
and the conventions (sobors) of the Russian
Orthodox Church in America have, for a period
of indefinite duration, taken their place as the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
authority to be followed by us respecting property
of the Russian Orthodox Church within this juris-
diction. The New York State Legislature has
recently so declared in clear and, as it seems to us,
unmistakable terms (L. 1945, ch. 817; L. 1948,
ch. 711).
Although the church in Russia was aided finan-
cially and subjected to political influence of the
czars, one is not justified in assuming, nor does
the majority opinion go so far as to state, that
the orthodox church in Russia was ever before
sought to be reduced by government to a condition
approximating that of being a mere communist
front. The majority opinion admits that religion
was proscribed and the orthodox church in Russia
persecuted by the Soviet Government.
This record and facts to which we may not blind
ourselves show that religious liberty in Soviet
Russia is nonexistent; that the church has lost
its independence and freedom of action under
superimposed political pressures; that the govern-
ment in Russia does not permit freedom of activity
to the church itself or its judicatories ; that the
political creed of the controlling power in Russia
is essentially atheistic ; that the Soviet regime is
anti-religious ; that the supreme church authority
in Russia has pledged itself to the government of
the communistic atheistic state, and the church in
Russia is under involuntary restraint of the civil
authorities. In such state of facts, how can it
reasonably be said that the central organization of
the orthodox church in Russia is able to function
as the governing entity of a Christian religious
society? If neither the church nor its head are
free, their administrative acts are not their own
but those of the Soviet state.
It is fundamentally erroneous to treat St.
Nicholas Cathedral and the parishes comprising
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
at least four fifths of the Russian Orthodox
Churches in the United' States as schismatics, for
the reason that they desire to retain their ancient
faith and order, unmolested by the group which
has seized power in Russia, and has seized the
church for its own uses. The repeated efforts
of these American communicants to achieve some
tangible expression of their spiritual unity with
believers in Russia, but without being subject to
the formal functioning of the central church
organization as a department of the Russian state,
should count in their favor in this action. Their
adherence to tradition is one of the indications
that they are not the chief divisive element, but
rather that, in truth and in fact, it is the church
in Russia that has been constrained. The distinc-
tion between spiritual communion in faith and
administrative control) must be kept in mind.
Christianity cannot permanently be suppressed in
Russia. That is something which principalities
and powers have been lFnable to accomplish from
the beginning. But it s hardly facing the facts
if one fails to realize that the present Russian
government has done and is doing all that is
politically possible to extirpate it, except as a
mere form for purposes of Soviet aggrandize-
ment, and that such persistence as the religion
has manifested there since the revolution has
come from the bottom up rather than from the
top down. The problem sub judice, as both the
trial court has held and as this court is holding,
concerns the identification of the beneficiaries for
whose use and enjoym~nt St. Nicholas Cathedral
and the other temporalities in this country were
dedicated. Instead of disputing the trust principle,
the plaintiff stands upon it. The difference in
point of view is that plaintiff maintains that these
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
29
temporalities are torn away from their intended
use, if they are held to be subject to the jurisdic-
tion of officials who could not function in Moscow,
whatever pious names they bear, except on the
dictates of a government whose every action in-
dicates that its political philosophy is based upon
the destruction of what christians of all denomina-
tions hold to be dear.
Recognition of these facts does not place the
courts or the Legislature in the fields of theology
or of ecclesiastical jurisdiction; it is necessary for
the civil authorities to act upon them in ascer-
taining and identifying the "church judicatories"
mentioned in Watson v. Jones (13 Wall. [U. S.]
679), whose word in those fields is to be accepted
as final in ordering the temporal concerns of
religious corporations.
The statement in the majority opinion that the
central church organization in Russia was suf-
ficiently real for the Russian church in America
to deal with it and seek reunion, is answered by
the utter frustration of those efforts. The 1945
sobor in Russia was "universal" in character
only if we ignore the subterfuge whereby the
American delegates were detained in Siberia until
the sessions of the sobor had been completed.
This maneuver is not to be brushed aside as
something done by the Russian "civil" as distinct
from ecclesiastical authority. The Patriarch did
not deplore but availed himself of it, refused to
give a hearing to the American delegates, and
handed them an uncompromising ultimatum upon
arrival based upon action that had been taken in
their absence. This incident illustrates the close-
ness of the connection between the civil and high
ecclesiastical authorities.
That was the sobor at which the present ruling
Patriarch Alexi was chosen, who is to have rule
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
30
over St. Nicholas Cathedral and the rest of the
Russian orthodox churches in the United States
if the judgment below is affirmed.
Always the American delegates safeguarded
their declaration of administrative independence,
by expressly adhering 'to their refusal to acknowl-
edge any connection with the church in Russia as
a formal functioning, organization while under
Soviet dominance. Reunion upon the terms of the
American delegates would have required a funda-
mental change in the present relation in Russia
between church and state. No such reform was
forthcoming, and the stuation remained as before.
This willingness to be in spiritual communion
amounted to no waiver of rights by the autonomous
body in America. Neither. did the 1946 sobor in
Cleveland, Ohio, sacrifice administrative inde-
pendence. Its effect was to re-emphasize that no
doctrinal schism separated the mass of believers
in Russia and in the United States, but that there
must be administrative independence while the
identity of the church organization in Russia re-
mai,ns merged in the: Soviet state. American
members of the Russian church are not respon-
sible for what has happened in the Kremlin.
When the proposition is thus stated, it is beside
the point that Soviet citizens are permitted to
own property in the United States. That has no
relation to whether St. Nicholas Cathedral and the
other Russian church temporalities in America
have been dedicated toy the use of those who have
been, or who desire to be, identified with the tra-
ditions of this religions society as they existed
before its central organs were subverted by Soviet
power.
In order to approach more closely to the prob-
lem presented for decision, it is necessary to re-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
view briefly the development of the autonomous
group in America, culminating in the recognition
by the Legislature of this group in 1945 and in
1948, as the successor to "that group of churches,
cathedrals, chapels, congregations, societies, par-
ishes, committees and other religious organiza-
tions of the Eastern Confession (Eastern Orthodox
or Greek Catholic Church) which * * * were sub-
ject to the administrative jurisdiction of the Most
Sacred Governing Synod in Moscow until on or
about nineteen hundred seventeen, later the Pa-
triarchate of Moscow, but now constitute an ad-
ministratively autonomous metropolitan district
created pursuant to resolutions adopted at a gen-
eral convention (sobor) of said district held at
Detroit, Michigan" in 1924 (Religious Corpora-
tions Law, art. 5-C, ?105; enacted by L. 1945, ch.
693, as amd. by L. 1948, ch. 711).
From April 2 to April 4, 1924, clerical and lay
delegates of parishes of the Russian Orthodox
Church of North America met in convention at
Detroit, Michigan, to consider how to free them-
selves from Russian secular domination. The
acuteness of their problem arose from the Russian
revolution's character, and its impact upon the
historical ties between Russian orthodox churches
in America and the ecclesiastical governing bodies
or officials in Russia. The situation was compli-
cated by the connection which had existed between
the czarist government and the Russian church.
The St. Nicholas Cathedral building on 97th Street,
in New York City, involved herein, was constructed
in 1903, with money some of which was supplied
by the then czarist Russian government and by
the church in Russia.
The old regime in Russia gave way to a new one
which did more than expect political reciprocity
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
from churches. It militantly proclaimed that re-
ligion is merely they opium of the people, that the
soul of man has no ;significance, and man himself
none, except as merged in the State. So all-
embracing are its claims, that it does not tolerate
literature, art, musk, science or religion except
in complete subordination to and in the service of
ends of the Soviet state. The office of Patriarch
was restored in 191"T, but that important church
dignitary, however much against his will, became
a creature of the Soviet government. "There is
no doubt," said one I, of the delegates at the 1924
Detroit convention, ',"that we all stand for the
Patriarch. But do ou know that he would be
thankful to us if w separated from him? By
such an act we would lrelieve his heavy cross."
The delegates to ',this Detroit convention of
1924, recognized their underlying spiritual kin-
ship with their Russian brethren, voted. "Not to
break at all the spiritual ties and communion with
the Russian church, but always to pray for her
good, give her every co-operation and mention the
Most Holy Patriarch as the head of the Russian
Mother Church to which the American church is
obligated for her existence", and they looked for-
ward to a time when the relationship between the
Russian and the American churches might be or-
dered by an oecumenical council of the entire Rus-
sian Orthodox Church "with the participation
of representatives of the American Church under
conditions of political 'freedom, guaranteeing the
fullness and authority or its decisions for the en-
tire church" ; but this convention resolved, never-
theless, "temporarily" until such a council could
be convened, "to declare the Russian Orthodox
Diocese in America a self-governed Church so that
it be governed by its own elected Archbishop by
means of a Sobor of Bishops, a Council composed
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
33
of those elected from the clergy and laity, and
periodic Sobors of the entire American Church."
A procedure was authorized to establish "a new
constitution of the American Church."
The use of the word "temporarily" is shown by
the context to mean until, and not before, the
dictatorship of the proletariat withers away, to
an extent necessary to enable an oecumenical coun-
cil to be held at which representatives of the
American church can participate under conditions
of political freedom.
The context shows that the mention of the
Patriarch as the head of the Russian mother
church, to which the majority opinion ascribes so
much importance, was an expression of the rever-
ence which the devout churchman has for the
priestly office, that exists without relation to the
conduct of the man who holds it. It is not clear by
what reasoning it can be argued that in revering
the office of Patriarch, these American delegates
were sacrificing the independence which they were
at pains to assert as an essential condition of any
rapprochement, nor that they were surrendering
their well-founded contention that the official acts
of the Patriarch are controlled by the Soviet state.
No one is concerned with attacking the character
of Patriarch Alexi for yielding to the demands of
the Russian dictatorship, nor in praising him for
casuistry in so doing. The determining fact,
which stands out above everything else in the
record, is that if Patriarch Alexi did not admin-
ister the Russian church so as best to promote the
spread of atheistic world communism, in the judg-
ment of the Russian chiefs of state, be would
quickly have been superseded by another who
would have done so. If the directives of such an
official are to be binding upon the traditional
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
34
branch of the Russian church in America, it has
it just grievance.
A constitution was prepared and adopted by
the autonomous Russian church in America, and
at a convention held in Cleveland, Ohio, Novem-
ber 20 to 23, 1934, Archbishop Theophilus Pash-
kovsky was elected metropolitan, and certain so-
called normal statutes for parishes were adopted.
If plaintiff-appellant is successful in this action,
Archbishop TheopI ilus will conduct the religious
services in the cathedral as metropolitan, as the
duly selected head of the Russian Orthodox
Church in North America.
In 1935, the Moscow Patriarchate issued a de-
cree suspending Metropolitan Theophilus, and
purporting to prohibit him from performing
divine service "until either he repents or the
ecclesiastical court shall have rendered a deci-
sion." The Patriarchate of Moscow had previ-
ously declared null' and void the proclamation of
the autonomous nature of the North American
diocese, which was! described as "an act rudely
violating Church Discipline". Defendant-re-
spondent Archbishop Benjamin Fedelienkoff was
proclaimed by Moscow "as permanent Ruling
Bishop of the Russian North American Diocese
with the title of Archbishop of the Aleutian
Islands and North America, also reserving to him
the status of Exarch of the Moscow Patriarchate
in America, and also granting to him the right
to wear the cross On his Klobuk ; to accept with
recognition as such,"
Thus, the outcome of this case involves more
than whether Archbishop Theophilus shall con-
duct the services in the cathedral: on it depends
whether the communicants of the Russian church
in America who refuse to submit to Soviet over-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
lordship, shall within our jurisdiction have the use
of the church buildings, revenues and other tem-
poralities of their traditional church.
It is unnecessary further to detail the efforts
of the American branch of the Russian church to
establish its administratively autonomous status,
as shown by the record, nor to outline the particu-
lar steps by which the Soviet government has
pursued the policy of seizing the machinery of
religion in order to control the minds of men. As
phrased in the dignified statement of the Ameri-
can delegates, who vainly sought to achieve a
modus vivendi on their mission to Moscow in Janu-
ary 1945: "It was no fault of the American
branch of the Russian Orthodox Church that by
force of circumstances it was compelled to estab-
lish its own church administration. It was no
fault of the American Church that the Patriar-
chate laid a suspension on it because its clergy
declined to give a pledge of loyalty to the Soviet
power."
Respondents' position is lucidly and briefly
stated in the motion by respondents' counsel to
dismiss the complaint at the close of plaintiff's
evidence at pages 268-270 of the record, and in the
resume of the Gregory Tchukov testimony at
pages 271-278.
The grounds that plaintiff cannot maintain an
action for ejectment, and that this action is barred
by the Statute of Limitations or laches, do not
require comment. The decision of the Trial Term
is not based upon them, and they are effectually
answered in appellant's brief. The important
ground, upon which the decision of the case was
made at Trial Term, is that plaintiff holds title
to the St. Nicholas Cathedral properties on 97th
Street, as trustee for the duly accredited arch-
bishop appointed by the supreme church authori-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
ties in Russia, and that the case of Kedrovsky v.
Rojdesvensky, (21;4 App. Div. 483, affd. without
opinion 242 N. Y' 547) held that an archbishop
appointed by such authorities is the only person
who has the right to possess, occupy and use that
cathedral.
The Tchukov testimony is that as a result of
enactments of a general convention (sobor) . in
Russia in 1917-198, the Patriarch and the Holy
Synod, of which the Patriarch is the head, are the
supreme authority' of the Russian church, that the
American branch of the Russian church is a diocese
of the Russian Orthodox Church, and is ruled by
an archbishop appointed by the supreme church
authority, which may suspend or remove such
archbishop and appoint another in his place at its
pleasure. He further stated that canon law, and
the rules and us ges of the Russian Orthodox
Church, do not prmit any diocese or any sub-
division or constituent part of the church, for any
reason whatsoevert to secede from or declare itself
independent of the main branch of the church at
large, or declare itself autonomous or a self-gov-
erning body or district. He testified that the
action of the group of Russian orthodox churches
in America, and the resolutions adopted by them
in the convention in Detroit of 1924, and the pur-
ported election of the predecessor of Archbishop
Theophilus as the archbishop of said churches
violates these canons, rules and usages, and spe-
cifically he added: )"Saint Nicholas Cathedral, in
accordance with the rules and usages of the Rus-
sian Orthodox Church, must be possessed, occu-
pied, and used by the Archbishop of the American
Archdiocese, who is duly appointed by the Su-
preme Church Authority, above referred to,
namely, the Patriarch and the Holy Synod, and
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
37
said Cathedral may not be occupied by any other
official or person."
If this position, upheld by the trial court, be
correct, it means that the courts and the Legisla-
ture are powerless to accord to these American
communicants of the Russian church the use of
their accustomed church buildings, and other
temporalities, unless they submit to the high
church authorities in Russia, who are captive to
the Soviet Government. We think that this would
be exalting form above substance.
In reversing the judgment appealed from and
deciding in favor of the plaintiff as the represen-
tative of the autonomous Russian church in Amer-
ica, there would be no conflict with the rulings in
Watson v. Jones (13 Wall. [U. S.] 679, supra) or
Trustees of Presbytery v. Westminster Church
(222 N. Y. 305). Those cases hold, as section 5
of the Religious Corporations Law declares, that
the "temporalities and property, real and per-
sonal," belonging to a religious corporation are
to be administered "in accordance with the disci-
pline, rules and usages of the corporation and of
the ecclesiastical governing body, if any, to which
the corporation is subject, and with the provisions
of law relating thereto".
It is readily conceded that the rule no longer
obtains in New York State that a religious corpo-
ration holds its temporalities free from regulation
by any ecclesiastical authority, or by a tenure so
independent that it could change its creed or de-
nominational character without losing its hold
upon its property (Westminster Church v. Pres-
bytery of New York, 211 X. Y. 214).
Respondents are also correct in asserting that
it was formerly the practice in the Russian Ortho-
dox Church in America for its archbishops and
bishops to be subject to administrative control by
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
some higher church authority, although the com-
position of such authority has changed from time
to time, as when thel, office of Patriarch was abol-
ished in 1700 and so remained for two centuries
until it was restored in 1917.
The essential point on which we consider that
the trial court erred and on which we differ with
the majority of this court, is the failure to recog-
nize that approval or direction by the high church
authorities in Russia has lost all canonical sig-
nificance, while those authorities have been de-
prived of their freedom of action. It is as though
they were constantly and in all things, subject to
duress, and subjected to duress by a government
founded upon principles inimical to the existence
of any Christian church. Their action or inaction
is,, therefore, nugatory.
" `Duress exists,' says Judge CooLEY, `when
one, by the unlawful' act of another, is induced to
make a contract or perform some act under cir-
cumstances which ddprive him of the exercise of
free will.' Hackley v. Headley, 45 Mich. 569, 574,
8 .N. W. 511. Duress] by the government or its of-
ficers, in this class of cases, is defined by the su-
preme court as `moral duress not justified by law.'
Maxwell v. Griswold 1.0 How. 242, 256, 13 L. Ed.
405. It must be the pressure arising from unlaw-
ful acts or demands on the part of the government
or its officers to produce that constraint of will or
action, or state of necessity or compulsion, which
render acts voluntary in form involuntary and
void." (Newburyport Water Co. v. City of New-
buryport, 103 F. 584,, 594.)
Under conditions existing today, it would be an
idle ceremony, void of all religious or ecclesias-
tical meaning, to call for approval by the so-called
supreme church authorities in Russia of the selec-
tion of an archbishop to preside over the American
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
branch of the Russian church. The only theory
on which such an act could signify anything, would
be that the Russian Government is exercising a
lawful function in utilizing the machinery of
church organizations, however deviously, to pro-
mote worship of the Russian state and its leaders.
We cannot recognize the validity of such a pro-
cedure, especially where the purpose is clearly to
use the Russian Orthodox Church in America as
an instrument of foreign Soviet propaganda here.
That such conduct, offensive to our public policy,
has been engaged in by a government recognized
by the United States, affords no reason why it
should be upheld in our courts (Vladikavkazsky
Ry. Co. v. New York Trust Co., 263 N. Y. 369, 378-
379, citing Baglin v. Cusenier, 221 U. S. 580). This
is in accordance with declarations of public policy
by the State Department of the United States. In
recent public pronouncements the State Depart-
ment, and our representatives in the United Na-
tions, have frequently recognized and denounced
the suppression of human rights and basic liber-
ties in religion as well as in other aspects of life,
existing in Soviet Russia and in all of its satellite
states. The President of the United States has
publicly characterized such efforts as a campaign
to turn religion into a tool of the state (Armistice
Day Address, November 11, 1949).
Even the intellectual and spiritual ties by which
men are held together, are so controlled by the
totalitarian state as ultimately to disintegrate all
autonomous groups outside of the state itself, or
the single political party that rules it. That
technique is applied to scientific and cultural as
well as to religious groups, so that ultimately no
autonomous group with any independence re-
mains. In the final analysis, the state and the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
40
state alone becomes all. It involves a retreat
from reality if we do not clearly see that. In this
case the technique of suppression, and the at-
tempted use of a religious group merely, as an
instrumentality to serve the all-embracing and
dominant ends of the!,Soviet state, is the real issue
presented. The so called "Russian church at
large", so frequently, mentioned by respondents,
is in reality and unfortunately the Russian church
group whose high ranking functionaries have been
completely subjected, and dominated by the men
who control the Politburo, and the relatively
small group that constitutes "the party", through
whom the vast millions in Russia and Soviet-
dominated satellite countries are regimented and
controlled.
The case of Kedrovsky v. Rojdesvensky (214
App. Div. 483, affd. without opinion 242 N. Y. 547,
supra) has mistakenly been regarded as control-
ling. In that case, it is true, the same group now
represented by plaintiff was defeated, and the
representatives of a group styled as the "Living
Church", "Renovated Church" or I'Soviet
Church", were held entitled to this cathedral. As
a result of that decision, Archbishop Kedrovsky
occupied it until his death in 1934, and his son,
the defendant John Kedroff, remained there until
his retirement ten years later. Archbishop Ben-
jamin Fedchenkoff, whose right to occupation of
the cathedral is confirmed by the judgment ap-
pealed from, does not, claim through Kedrovsky,
nor through his son, the defendant John Kedroff.
Respondents in this cage concede that Archbishop
Kedrovsky's appointment was uncanonical, and
that the group represented by him had no stand-
ing and is now extinct. Thus, in the testimony of
Tchukov, it is stated concerning the 1923 conven-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
tion (sobor) in Russia, from which Kedrovsky
derived his supposed canonical status : "This
sobor is not regarded as having met with canonical
requirements because it was not called by the
Patriarch and the Holy Synod. However, within
a few years thereafter, these Church movements
subsided and practically all of the leaders, ad-
herents and parishes of this Church joined with
and were absorbed by the Patriarchal Church."
He also stated that the resolutions of this sobor
`" shortly became a dead letter," and "that the
constituent parties of the Sobor of 1923 shortly
died out and the Patriarchal Church functioned
effectively and without restraint."
When the case of Kedrovsky v. Rojdesvenisky
(214 App. Div. 483, affd. 242 N. Y. 547, supra)
was in the courts, it evidently did not suit the
purposes of the ruling power in Russia to furnish
evidence to establish the lack of canonicity of the
group which succeeded in that lawsuit. That cir-
cumstance should result in scepticism concerning
the present assertion, that since the extinction of
the winning faction in that action "the Patriar-
chal Church functioned effectively and without
restraint." As stated by LORD MANSFIELD in
Blatch v. Archer (Cowp. 66) : "It is certainly a
maxim that all evidence is to be weighed accord-
ing to the proof which it was in the power of one
side to have produced and in the power of the
other to have contradicted" (quoted in 2 Wig-
more on Evidence, ?285, p. 163). It does not ex-
ceed the limits of judicial notice to recognize that
in this action defendant Benjamin Fedehenkoff,
like Kedrovsky in the prior action, had access in
Russia to whatever helpful documentary or other
evidence respondents needed, whereas the door
to obtaining similar proof in plaintiff 's behalf
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
was undoubtedly closed, as it was to Archbishop
Platon in the prior !case. Were it to suit the pur-
poses of the ruling 'caste in Russia at some future
time to disavow the! authority of Archbishop Ben-
jamin, there is little doubt that the lack of it
could be demonstrated as effectively as has been
accomplished in the case of Archbishop Kedrov-
sky, who appeared ,to possess the tokens of in-
vestiture when he was in court a quarter of a
century ago.
Nevertheless, it is urged, and has been held,
that the Kedrovsky case controls, on the theory
that it established that whoever is to be the right-
ful incumbent of St. Nicholas Cathedral, must
have obtained the approval of the Patriarch and
Holy Synod in Russia.
In considering they Kedrovsky case, decided in
1925, it should be bonne in mind that the relation-
ship of the Russian -overnment to churches was
not and could not hake been widely known, to the
extent that has since) been manifested in Russia
and its satellite countries. The situation has be-
come so obvious and' acute that, since the Ked-
rovsky case was decided, the Legislature has
recognized the administratively autonomous group
established at the 1924 Detroit convention, and
subsequent conventions ' as being the traditional
branch of the Russian Church in America. If
Kedrovsky v. Rojdesv!ensky were otherwise held
to be controlling, its efect would have been over-
come by these acts of the Legislature. Article 5-C
was added to the Religious Corporations Law by
chapter 693 of the Laws of 1945, and amended
by chapter 711 of the laws of 1948. The amend-
ment, effective March 1, 1948, was evidently in-
tended to interpret rater than to change the con-
tent of the 1945 act (People ex rel. Westchester
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
43
Fire Ins. Co. v. Davenport, 91 N. Y. 574; Suther-
land on Statutory Construction [3d ed.], ?1931,
p. 418), and is of special interest since it became
law after the decision was rendered herein by
Trial Term, and interprets the 1945 statute other-
wise than as it was construed in Trial Term's
opinion, as is pointed out hereafter.
In analyzing these statutes, it should be recol-
lected that the purpose of the Religious Corpo-
rations Law is to deal with the temporalities of
religious societies, and to insure that they will
be administered for the benefit of the societies
for which they have been dedicated (Walker Me-
morial Baptist Church v. Saunders, 285 N. Y.
462, 472; Watson v. Jones, 13 Wall. [U. S.] 679,
supra). There is no attempt by the State, acting
either through the Legislature or the courts, to
enter into matters of doctrine or ecclesiastical
law, except only insofar as necessary to the ad-
ministration of real or personal property. In
Watson v. Jones, in discussing controversies aris-
ing in the civil courts concerning property rights
of religious societies, in an often quoted state-
ment, the Supreme Court said (p. 727) : "In this
class of cases we think the rule of action which
should govern the civil courts, founded in a broad
and sound view of the relations of church and
state under our system of laws, and supported
by a preponderating weight of judicial authority
is, that, whenever the questions of discipline, or
of faith, or ecclesiastical rule, custom, or law
have been decided by the highest of these church
judicatories to which the matter has been carried,
the legal tribunals must accept such decisions as
final, and as binding on them, in their application
to the case before them."
This principle is embodied in section 5 of the
same chapter of the Consolidated Laws to which
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
article 5-C of the Religious Corporations Law
was added in 1945 and 1948.
The Legislature undoubtedly bore this prin-
ciple in mind when in enacting article 5-C it
declared the autonomous group represented by
this plaintiff, to be thel, true successor and repre-
sentative in America of the Russian branch of
the ]Eastern Orthodox or Greek Catholic Church,
and therefore entitled to "the custody and con-
trol of all temporalities and property, real and
personal, belonging toy such church and of the
revenues therefrom * " (Religious Corpora-
tions Law, ?107, subd. 3). When article 5-C
was added, at least four fifths of the parishes
in the United States had joined the autonomous
group, and declared themselves administratively
independent of Moscow. They had firmly and
convincingly avowed that the Synod and the Patri-
arch had lost their freedom of action, and that
their ostensible administrative acts were there-
fore not their own. They had become puppets.
It was within the competence of the Legislature,
as it would be within 'that of the courts in the
absence of legislation, in searching for the
"church judicatories" mentioned in Watson v.
Jones, whose decisions on questions of ecclesi-
astical rule are to be! final, to determine that
the higher church authorities in Moscow have
become a phantom, a mere semblance having the
form but not the substance of organs of the ortho-
dox eastern church, and that while under such
duress their action may be treated as void or
superfluous. The Legislature has expressly de-
termined that, in this instance, the church judi-
catories whose determinations are to be followed,
are the Detroit and Cleveland conventions of
1924 and 1934 and the', New York convention of
1937.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
45
The case of Watson v. Jones involved a deci-
sion in a Presbyterian parish in Kentucky over
the question of slavery at the time of the Civil
War. It was held that the independent faction
in that parish was subject to the Presbytery,
Synod and General Assembly of the Presbyterian
Church in the United States even though it dis-
agreed on the question of slavery. There was
no such factor in that case, as in this, that the
organs of the general church had ceased to have
anything but a formal ecclesiastical existence of
their own, and had been in reality merged in an
atheistic state. To regard the high church func-
tionaries in Russia as having administrative free-
dom independent of the Russian government, is
as unwarranted as it would be to attempt to dis-
tinguish between the Russian state and any other
communist front.
The extended narration of the history of the
Russian church in America contained in section
105 of article 5-C of the Religious Corporations
Law, appears to have been inserted in order to
leave no room for dispute that the "group of
churches, cathedrals, chapels, congregations, so-
cieties, parishes, committees and other religious
organizations of the Eastern Confession (East-
ern Orthodox or Greek Catholic Church) " which
had been known historically by various names,
enumerated in the statute, including that of "Dio-
cese of North America and the Aleutian Islands ",
and which "were subject to the administrative
jurisdiction of the Most Sacred Governing Synod
in Moscow until in or about nineteen hundred
seventeen, later the Patriarchate of Moscow" do
"now constitute an administratively autonomous
metropolitan district created pursuant to reso-
lutions adopted at a general convention (sobor)
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08126 : CIA-RDP60-00442R000100110003-9
46
of said district held at Detroit, Michigan, on or
about or between April second to fourth, nineteen
hundred twenty-four;" (Emphasis supplied.)
The structure of this statute is not such as to
provide for the incorporation of new parishes in a
new religious denomination, as the majority opin-
ion. indicates, without reference to the Russian
Orthodox Church as previously organized in
America. This statute gives civil recognition to
the action taken at the Detroit sobor in 1924, which
was not concerned with organizing new parishes
but in severing the old ones from control by Mos-
cow. In plain language it describes the Russian
Orthodox Church, identifying it by all the names
under which it had been known historically in
this hemisphere since 1793, and then declares that
this same church organization in America which
was previously subject to control by the central
church authorities in Moscow shall be so no longer,
but shall constitute an administratively autonom-
ous district to be known as the "Russian Church
in America", erected '' by conventions held in the
United States. Neither do we think that such a
clearly stated intent on the part of the Legislature!
in ]_945 and 1948, to act in respect of this very
situation, should be nullified for the reason that in
1943 a minor amends' ent was passed to an old.
section of the Religious Corporations Law affect-
ing the powers of trustees of the four orthodox
Greek catholic primary jurisdictions in America-
Constantinople, Antioch, Serbia and Moscow (L.
1943, ch. 145, ?1, amdg. Religious Corporations
Law, ?15, subd. 3), not for the reason that in the
same year (1943) a new article was added (art.
15) providing for incorporation of parishes of
churches subject to any, of said four primary juris-
dictions. In any event, the 1945 and 1948 legisla-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
47
tion, applying to this particular situation, should
be held to control over the former more general
enactments and, if necessary, to have repealed
them pro tanto (Strauch v. Town of Oyster Bay,
263 App. Div. 833; Wood v. Wellington, 30 N. Y.
218).
Subdivision 1 of section 107 of article 5-C pro-
vides that every orthodox church in this State
shall recognize and be and remain subject to the
administrative authority of the governing bodies
and officials of "the Russian Church in America,
pursuant to the statutes for the government
thereof adopted at a general convention (sobor)
held in the city of New York on or about or be-
tween October fifth to eighth, nineteen hundred
thirty-seven, and any amendments thereto and any
other statutes or rules heretofore or hereafter
adopted by a general convention (sobor) of the
Russian Church in America and shall in all other
respects conform to, maintain and follow the faith,
doctrine, ritual, communion, discipline, canon law,
traditions and usages of the Eastern Confession
(Eastern Orthodox or Greek Catholic Church)."
Subdivision 3 of section 107 provides for the
further administration of the temporalities in
accordance with church. by-laws, and of the stat-
utes for parishes of the Russian church in Amer-
ica approved at a general convention thereof held
at Cleveland, Ohio, from November 20 to 23, 1934,
and any amendments thereto and all other rules,
statutes, regulations and usages of the Russian
church in America. The Cleveland convention,
held on the dates specified in this statute, was the
one which named Archbishop Theophilus Pash-
kovsky to preside over the Russian church in
America, who will occupy St. Nicholas Cathedral
if plaintiff succeeds.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Trial Term took, as we think, too restricted a
view of article 5-C of the Religious Corporations
Law, in holding it ti"applicable only to Russian
Orthodox churches Which might thereafter be or-
ganized (?106) or which, having theretofore been
incorporated, should thereafter be reincorporated
(?108) ", and in holding that "Since St. Nicholas
Cathedral falls within neither of these categories,
it follows that its use is not subject to the direc-
tion of the Russian Church in America" (P. 333).
After Trial Term's ''decision, article 5-C of the
Religious Corporations Law was amended, not
only so as to insert', the word ? I administrative"
to characterize the independence from Moscow of
the American body, but also so as to define the
application of article' 5-C (?107) to "Every Rus-
sian Orthodox church in this state, whether in-
corporated before or after the creation of said
autonomous metropolitan district, and whether
incorporated or reincorporated pursuant to this
article or any other article of the religious corpo-
rations law, or any: general or private law."
(Emphasis supplied.); This language was not in-
tended to limit the application of article 5-C to
churches thereafter incorporated or reincorpo-
rated under that article. Plaintiff was incorpo-
rated by a private law,known as chapter 463 of the
Laws of 1925, and its corporate existence was
confirmed, moreover, by chapter 817 of the Laws
.of 1945, by the same Legislature which added
article 5-C to the Religious Corporations Law. We
think that article 5-0, particularly as it was
amended and construed by chapter 711 of the
Laws of 1948, was intended to relate to plaintiff,
and to direct the courts by what authority the
temporalities of the Russian church in America
are to be administered.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003--9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
In order to accomplish its purpose, this act need
not be an expropriation statute, such as that which
deprived the Mormon Church in Utah of property
which was subsequently used for common schools
(Mormon Church v. United States, 136 U. S. 1),
nor must it involve what Trial Term further de-
scribed as "a transfer of property of all Russian
Orthodox Churches in this country to the use of
the newly recognized `Russian Church in Amer-
ica' " (emphasis supplied). (Pp. 332-333.) All
that was intended by these statutes, being all that
was necessary to the end in view, was to determine
that the Russian church in America, as defined in
these acts, is the traditional Russian Orthodox
Church on this continent, that the communicants
are legally entitled to worship in the same build-
ings and have the use and revenues of the other
temporalities which they had previously enjoyed,
that they are not to be put out or kept out of pos-
session upon directions emanating in reality from
the Kremlin, and that the Synod and the Patriarch
in Moscow are to be regarded as having no pres-
ent functional existence apart from the Soviet
Government. The Legislature recognized the De-
troit convention of 1924, and subsequent conven-
tions in this country, declaring the autonomous
Russian Church in America to be the same reli-
gious society which had previously been known in
this country by the other names which had been
borne here by the Russian branch of the Eastern
Orthodox or Greek Catholic Church.
A statute does not infringe the constitutional
guarantee of religious liberty nor the separation
of church and state, which provides for a decent
separation here between the church and the Rus-
sian state. Statutes are presumptively constitu-
tional (Matter of Buoneto v. Buoneto, 278 N. Y.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
2&1), and the constitutionality of article 5-C of the
Religious Corporations Law is not subject to at-
tack if the administrative acts of the Russian
central church authority are controlled by an anti-
religious dictatorship. Nothing in the cases of
Watson v. Jones ors Trustees of Presbytery v.
Westminster Church holds that the State, acting
through courts or Legislature, cannot trace and
identify under changed circumstances the reli-
gious society for whose benefit temporalities have
been dedicated. Legislatures and courts have
more than once been called upon to ascertain what
has become of the group which the founders meant
to :endow, to identify it behind a changed facade,
or to decide by cy pres what is the religious society
that most nearly resembles the original if the lat-
ter has become extinct or altered beyond. recogni-
tion. Construed as a legislative ascertainment
under conditions now existing in the world, of the
organized religious society for whose use the tem-
poralities here in question had been dedicated, no
question of constitutionality arises. Traditional
Russian orthodox pai ishes in the United States
have declared, in effect, that they are, and as of
right ought to be, free from administrative control,
by an aggressivly atheistic Russian state. The
Legislature has merely confirmed the existence of
this well-known fact, and has not caused any depri-
vation of property without due process of law, nor
interfered with religious liberty. On the contrary,
it has provided for the enjoyment of this property
by its accustomed beneficiaries.
The majority of this court professes to be in
ignorance concerning whether the domination of
the central church authorities by the Russian state
is really a fact, and rebukes the minority for being
guided in this matter d 4on suspicion or news re-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
ports; we act only on legal proof." The record
contains proof on the point; but even if it did not,
the wise rule was thus expressed by Lord COLE-
RIDGE in Lumley v. Guy (2 El. & Bl. 266, quoted in
9 Wigmore on Evidence, ?2583, note) : "Judges
are not necessarily to be ignorant in Court of what
everybody else, and they themselves out of Court,
are familiar with ; nor was that unreal ignorance
considered to be an attribute of the Bench in early
and strict times."
In Nankivel v. Omsk All Russian Government
(237 N. Y. 150, 156) notice was taken that recent
Russian history in considerable detail is a matter
of common knowledge. In 15 Ruling Case Law
(Judicial Notice, ?28, p. 1093) it is stated that
"Matters of religious history are deemed to be
subjects of common knowledge and therefore of
judicial: notice," which is also said to be taken of
"the general current of human affairs, which rest
entirely upon acknowledged notoriety for their
claims to judicial recognition." (?1.)
Moreover, the constitutionality of article 5-C is
to be presumed, and, if it depends upon the dom-
ination of the Russian central church authorities
by the Soviet state, the Legislature is deemed to
have found that as a fact, and the burden is cast
upon those who are attacking the constitutionality
to establish that the fact is otherwise. In O'Gor-
man,& Young v. Hartford Ins. Co. (282 U. S. 251,
257-258) it was said: "As underlying questions of
fact may condition the constitutionality of legis-
lation of this character, the presumption of con-
stitutionality must prevail in the absence of some
factual foundation of record for overthrowing the
statute." In Powell v. Pennsylvania (127 U. S.
678, 685) the court stated: "And as it does not
appear upon the face of the statute, or from any
facts of which the court must take judicial cog-
nizance, that it infringes rights secured by the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
52
fundamental law, the legislative determination of
those questions is conclusive upon the courts." In
People v. Lochner (177 N. Y. 145,169) it was stated
in a concurring opinion by VANN, J., on a question
of constitutionality: "Necessarily in considering
the subject we may :resort to such sources of in-
formation as were open to the legislature." Again
in. Noyes v. Erie Wyoming Farmers Co-op.
Corp. (281 N. Y. 187, 195) the rule was declared:
"But a known state of facts warranting legisla-
tive action is presumed' * *." In Szold v. Outlet
Embroidery Supply Co. (274 N. Y. 271) 278) it was
stated in an opinion, per LOUGHRAN, J., in consid-
ering an assertion of facts which would impair the
constitutionality of a statute : "We think the as-
sertion is without support in the ordinary data of
human experience, but if we are not supposed to
know this to be so, then the presumption is that
the Legislature inquired and found the need * * '"."
In view of the statutory enactment in this State
determining that the autonomous group with
which plaintiff is affiliated is the successor to the
American branch of the Russian Orthodox Church,
entitled to the control and administration of its
properties, we are required to assume that the
Legislature examined into the question and de-
termined that the central church authorities in
Moscow function in reality as a department of the
Russian State. The majority opinion toward the
end suggests that if and when the Russian Ortho-
dox Church no longer exists in Russia, or "if and
when the Legislature of this state may make ap-
propriate disposition 'of property within this state
found to be subject to its control and disposition,
our courts may take other action. Thus far we find
no declaration by the Legislature and no proof
offered to this court that the trust purposes for
which plaintiff holds the cathedral have been ex-
tinguished or terminated." This statement fails
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
53
to consider that, under the cases above cited, it was
not necessary for the Legislature in enacting arti-
cle 5-C to enumerate specifically the facts con-
ditioning its validity, but that the existence of such
facts would be presumed. Among the facts which
the Legislature is deemed to have found are a
Patriarch and Synod in Moscow dominated, di-
rected and controlled by a totalitarian atheistic
regime. If it is to be decided that the trust pur-
poses for which plaintiff holds the cathedral
require that any Christian society shall submit to
administrative control by such authority, it is
difficult to conceive what more aggravated circum-
stances could exist that would call for legislative
or court action to overrule the conclusion reached
by the majority herein.
It is said that there have been instances in his-
tory where a church or sect has been subject to
varying degrees of political control or domination
without drawing in question its functional exist-
ence. It is probable that history has never known
such refined techniques, whether based upon subtle
psychology of propaganda or the ruthless use of
brute force, for coercing body, mind and spirit as
those which have been developed with the aid of
modern science, and used so effectively by totali-
tarian countries in the present era. A venerable
church, widely respected, can be transformed into
a powerful engine for the exercise of such coercion
and control. That objective could not be reached
except by making use of ecclesiastical forms, but
the fact that these are to some extent left undis-
turbed indicates only that by doing so the church
can more effectively be used for political oppor-
tunism, and not that there is any real area of
freedom for church functionaries. It has been the
unmistakable purpose of the Soviet Government
to prostitute historical churches to that end, and
where highly placed clerics have been bent to the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
will of that government, reason dictates that their
utterances should not be regarded as the official
expression of their communions but as the voice
of the Politburo.
The point is not whether the Soviet Government
will succeed in annihilating all religion except
worship of the Russian state; it is, rather, that our
law does not require us to assist in the process, so
far as churches in America are concerned, by sus-
taining the eviction of their communicants and
compelling them to find other places of worship,
unless they submit to administrative direction by
top level church officials who would not be per-
mitted to function,: unless they consented to the
use of their powers to promote the advancement
of atheistic world communism. It is not believed
that the purposes of the present regime have been
substantially altered, l as thus expressed in a state-
ment by Josef Stalin in his conversation with mem-
bers of the First American Trade Union Delega-
tion September 9, 19;7, as set forth at pages 345-
346 of this record: "P ie Party cannot be neutral
with regard to religion, and it conducts anti-
religious propaganda 'against any and all religious
prejudices because it 'stands for science, while re-
ligious prejudices go against science, since every
religion is something contrary to science. * * * The
Party cannot be neutral with regard to the bearers
of religious prejudices, with regard to the reac-
tionary clergy, poisoning the minds of the toiling
masses. Have we oppressed the reactionary
clergy? Yes, we have oppressed them. The
trouble is only that they are not yet fully liqui..
dated. Antireligious propaganda is the means
which must carry through to the end the work of
liquidating the reactionary clergy." Whatever
this statement may signify in respect to science, it
is an expression of uncompromising and ruthless
hostility toward Christianity. The Roman em-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
perors Nero and Trajan also persecuted the Chris-
tians, but they were not in the anomalous position
of attempting to be at the same time in actual
charge of the administration of the Christian
church.
The Orthodox Eastern or Greek Catholic
Church, in its origin, was affected to a greater de-
gree by the civil power exerted through the east-
ern empire, than was true in the west. It appears
to be true enough that the czars, professing Chris-
tians, like the Emperior Justinian before them,
frequently ruled the church in important respects.
On the other hand, there were periods when the
civil power was weak, when the Russian church
became the chief permanent institution of the
Russian nation, and the patriarch of Moscow
stood out as the visible center of unity (Adeney
on The Greek & Eastern Churches [Scribner's,
1908], pp. 406-407).
The church in the east never had the cohesion of
the Roman Catholic church, and after Justinian's
empire disintegrated, the church-state relation-
ships made the rising forces of nationalism tend
to eliminate central authority, and to divide the
Orthodox Eastern Church along nationalist lines.
This is said to have resulted in the establishment
of about seventeen autonomous Orthodox Eastern
churches (see Columbia Encyclopedia [1946 ed.],
tit. "Orthodox Eastern Church", p. 1314). The
Russian Orthodox Church itself was formed by
breaking away from the Patriarch of Constanti-
nople, after he became subject to the "infidels"-
to a lesser degree, however, than in Russia today
-upon the fall of Constantinople to the Turks at
the end of the Middle Ages in 1453. This, says a
leading historian (Adeney, p. 392), had the imme-
diate consequence of gaining ecclestiastical inde-
pendence for the Russian church, resulting in the
election of the metropolitan of Moscow by a coun-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
56
Gill of Russian bishops instead of his being ap-
pointed by the Patriarch of Constantinople. There
was no doctrinal schism. Even when express rec-
ognition finally was' wrested from the enfeebled
Patriarch in 1589, and the office of Patriarch of
Moscow was set up, there was grave doubt among
formalists concerning the power of the Patriarch
of Constantinople to 'do this without the approval
of an oecumenical council and, furthermore, there
was no ceremony of investiture. The latter was
withheld as a concession to the Byzantine Greeks,
who were thus enabled to adhere to the view that
the Russian church was uncanonical and void
(Janin on The Se'rparated Eastern Churches
[Sands & Co., London, 1933], pp. 94-95; Adeney,
op. cit., p. 392, et seq.). "But", continues the lat-
ter author, "beyond this accession of dignity the
patriarch of Moscow ~had acquired no more real
power than had been secured already by the met-
ropolitan." (P. 406.)
The autonomous Russian church in America is
following a similar ,course today. The head-
quarters has not been in Russia for 900 years, but
was in Constantinople'', until the Patriarch of Con-
stantinople fell into the hands of the Turks. That
created a situation which was as intolerable for
the churches in Russia as the autonomous group
in America are finding it today, now that the
Patriarch of Moscow has fallen into the power of
modern infidels. Until then there was no Patri-
arch of Moscow, who was brought into being by
this earlier historical parallel. The fiduciary prin-
ciple, on which the outcome of this case depends,
can hardly be so inelastic as to require that a
Christian religious society must submit to the
dictates of either militant atheism or militant
Mohammedanism in order to continue to possess
its property.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
57
In the case of an established national church, it
is inevitable that foreign branches will become
autonomous where the mother country insists upon
using it as an instrument of national policy. An
illustration of judicial recognition that the tides
of history are not to be confined by legal fictions,
is found in the holding that the Episcopal Church
in America ceased to be subject to control by the
Archbishop of Canterbury after the American
Revolution (Sohier v. Trinity Church, 109 Mass.
1, 20; Zollman on American Civil Church Law
[Columbia University, 19171, pp. 161-162), not-
withstanding that the establishment" of the
Anglican Church in England involved no such
absorption of the church into the state as exists
in Russia, that the cultural and traditional back-
grounds of the two countries were homogeneous,
and that the beliefs and ecclesiastical practices of
those two denominations were almost identical.
An appeal to history tends to result in confirma-
tion of the legal position of the autonomous Rus-
sian church in America as successor to the branch
of the Russian Orthodox Church on this continent,
and in the conclusion that the Legislature has
acted within the historical pattern of the Orthodox
Eastern Church in accordance with which the
church in Russia itself was established.
In these latter days there have been declarations
by high ecclesiastics, before being arrested in com-
munist countries, to disregard whatever they may
afterward say. The human being cannot always
forecast what he will say or do when subjected to
extremes of physical or mental torture. Religious
leaders have sometimes found it possible to be
foresighted enough to delegate their authority in
anticipation of such catastrophies. The Russian
high church authorities in recent times endeavored
to do so in event of dioceses cut off from Moscow
by "military movements ". The Patriarch and
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Holy Synod, while they still enjoyed some free-
dom of action, were) not farsighted enough ex-
pressly to delegate power to branches of the Rus-
sian Orthodox Church beyond the reach of Soviet
control, in anticipati of absorption of the cen-
tral authority into the Russian state. There is
indication in this record that Patriarch Tilthon,
had he known what was to come, might have done
something of that kind. His hand appears to have
been forced, however,, and he died in 1925. There
is no reason to believe that PatriarchAlexi could
have been appointed or continue to hold office if ho
were not a willing toot of the Kremlin.
If express delegation of authority in advance is
indispensable, it would appear to be a postulate
of that principle, that if the central church author.
ity :in Russia had beenprevented from functioning
by German military occupation during World War
II, the American and other foreign branches of
the Russian Orthodox Church could not have op-
erated outside of the orbit of the captured central
authority, except as the latter had previously au-
thorized them to do so. The German invaders, if
Moscow had fallen, could, in the absence of that
formality, have been masters of the Orthodox Rus-
sian Church throughout the world. If this be true,
it behooves every church organization within strik-
ing range of Soviet power to discern the pattern
of the future-whateve~ that may be-and to dele-
gate authority accurately in anticipation of all
contingencies, since otherwise under the majority
ruling herein whoever seizes the central organs of
authority will have de jkcre control of the function-
ing of the entire religious society wherever sit-
uated.
In ecclesiastical as well as in legal thinking,
there is a well-grounded professional instinct that
lines of authority should be rendered explicit, but
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
it seems to be a reductio ad absurdunv to regard
the absence of such anticipatory express delega-
tions as a warrant of power for usurpers of
ecclesiastical rule. It is sound legal doctrine to
treat as null and void the words and acts of per-
sons or officials who have been deprived of their
freedom of action. Nor should the historical
Russian church in the United States be held to
have disintegrated, for the reason that the volun-
tary direction and consent of the Patriarch and
the Holy Synod in Moscow are no longer obtain-
able. Expressly delegated lines of authority are
desirable, but if they be always essential, a church
communion would be in a sorry plight if its high
officials, failing to read the future correctly, ne-
glected to delegate administrative power, or did so
in the wrong direction or to the wrong persons.
Nice questions might arise, even then, of power to
delegate power, and a vital church organism be
strangled in legal technicalities.
The majority opinion states that we have mis-
understood the controversy between these parties;
the record shows that we have not misunderstood
it, that there is a fundamental matter in difference,
and of a type that is not likely to be settled until
it is settled right.
The judgment appealed from should be reversed,
with costs, and judgment entered awarding to the
plaintiff possession of the real property described
in the complaint, to be held by it subject to its acts
of incorporation, by-laws and the statutes, regu-
lations and usages of the Russian church in Amer-
ica described in article 5-C of the Religious Corpo-
rations Law.
COIIN and SHIENTAG, JJ., concur with CALLAHAN,
J.; VAN VooRHIs, J., dissents and votes to reverse
in an opinion in which DonE, J., concurs.
Judgment affirmed, with costs.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
60
302 New York 1
SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTH-
ODOX CHURCH IN NORTH AMERICA, Appellant, v.
JOHN KEDROFF and BENJAMIN FEDCHENIiOFF, as
Archbishop of the Archdiocese of North Amer-
ica and the Aleutian Islands of the Russian
Orthodox Greek Catholic Church, Respondents.
Argued June 1, 1950; decided November 30, 1950.
APPEAL from a judgment of the Appellate Divi-
sion of the Supreme Court in the first judicial de-
partment, entered January 25, 1950, affirming, by
a divided court, a judgment of the Supreme Court
in favor of defendants, entered in New York
County upon a dismissal of the complaint by the
court at a Trial Term (BOTEIN, J.; opinion 192
Misc. 327), without a jury, at the close of the ern-
tire case.
Ralph Montgomery Arkush for appellant. I.
Article 5-C of the Religious Corporations Law ap-
plies to plaintiff. (People ex rel. Westchester
Fire Ins. Co. v. Davenport, 91 N. Y. 574.) IL
Article 5-C, construed as contended for by plain..
tiff, is within the competence of the Legislature?
(State v. Powell, 58 Ohio St. 324; Robertson v.
Bullion, 11 N. Y. 248; Baptist Church in Hart-
ford, v. Witherell, 3 Paige Ch. 296; Parish of Bell-
port v. Tooker, 29 Barb. 256; Petty v. Tooker, 21
N. Y. 267; Westminster Presbyt. Church v. Trus-
tees of Presbytery, 142 App. Div. 855; Matter of
Third M. E. Church, '167 Hun 86; State ex rel.
Barry v. Getty, 69 Conn. 286; Krauczunas v. Ho-
ban, 221 Pa. 213.) III.' The principles of Watson
v. Jones (13 Wall. [U. 9.1 679) are not to be read
into the constitutional restraints on legislative ac-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
tion. (Westminster Presbyt. Church v. Trustees
of Presbytery, 142 App. Div. 855; Girard v. Phila-
delphia, 7 Wall. [U. S.] 1; Canovaro v. Brothers
of Hermits of St. Augustine, 326 Pa. 76.) VI. The
Legislature is deemed to have found that the top
Moscow hierarchy is dominated by the Soviet Gov-
ernment. (Matter of Reuss, 196 Misc. 24; Matter
of Frankel, 196 Misc. 268; Lapchak v. Baker, 298
N. Y. 89; East New York Sav. Bank v. Hahn, 293
N. Y. 622; Merit Oil Co. v. Director of Necessaries,
319 Mass. 301.)
Philip Adler for respondents. I. Plaintiff has
no claim on the merits. Plaintiff is acting on be-
half of a group that has seceded from the Russian
Orthodox Church and thus has lost all right in
the cathedral. (Watson v. Jones, 13 Wall. [U. S.]
679; Connitt v. Reformed Prot. Dutch Church of
New Prospect, 54 N. Y. 551; Trustees of Presby-
tery of N. Y. v. Westminster Presbyt. Church, 222
N. Y. 305; McGuire v. Trustees of St. Patrick's
Cathedral, 54. Hun 207; Rector of St. James
Church v. Huntington, 82 Hun 125.) II. Article
5-C of the Religious Corporations Law, with or
without the amendment, does not apply to St.
Nicholas Cathedral. The statute does not transfer
the use of St. Nicholas Cathedral from the pa-
triarchal church to the metropolitan district.
(Shielcrawt v. Moffett, 294 N. Y. 180; Geneva cC
Waterloo Ry. Co. v. New York Central d' H. R.
R. R. Co., 163 N. Y. 228.) III. Article 5-C of the
Religious Corporations Law, as construed by
plaintiff, would violate the First and Fourteenth
Amendments to the United States Constitution
and section 3 of article I of the New York Con-
stitution. (Illinois ex rel. McCollum v. Board of
Educ., 333 U. S. 203; Everson v. Board of Educ.,
330 U. S. 1; Murdock v. Pennsylvania, 319 U. S.
105; West Virginia State Bd. of Educ. v. Barnette,
I
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
62
319 U. S. 624; Drozda v. Bassos, 260 App. Div. 408;;
Marsh v. Alabama, 326, U. S. 501; Busey v. District
of Columbia, 138 F. 2d 592; Terminiello v. City of
Chicago, 337 U. S. 1.)
CONWAY, J. In 1903, a church was built at 15
East 97th Street in New York City, title to which
was held by a. corporation, created in 1899 under
the Religious Corporations Law of this State and.
named "Russian Orthodox St. Nicholas Church.
in New York". The church was constructed with.
funds supplied partly} from abroad and partly
from local contributions and it was dedicated to
the use of the members of the local congregation
of the Russian Orthodox Church in New York
City established in 189,3. Two years later in 1905,
the See of the Russian'Orthodox Diocese of North
America and the Aleutian Islands was trans-
ferred from San Francisco to New York and St.
Nicholas Church beca e a cathedral occupied by
the ruling bishop of the North American Diocese
and dedicated to the use of all the members of the
diocese as a central place of worship of the Rus-
sian. Orthodox Church in North America. This
cathedral is the subject of the present controversy.
Simply stated, it is our duty in this action to
identify the true and proper beneficiaries at the
present time of such dedication of the cathedral
so that there may be proper administration of this
religious trust. In approaching that task, it is
vital to our inquiry that we understand the his-
tory and organization, of the Russian Orthodox
Church, and the origin's of its difficulties in mod-
ern times as disclosed' in the record here and the
record in Kedrovsky -V..Rojdesvensky (242 N. Y.
547), which was submitted to us upon the argu-
ment.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
63
The Russian Orthodox Church is one of that
loosely knit group which generically is referred
to as the Eastern Confession or the Eastern Ortho-
dox Church-an allusion to the rupture of the
eastern and western portions of the Catholic
church in 1054. The Russian church originally
was subject to the Patriarch of Constantinople
but acquired greater autonomy when Constanti-
nople fell to the Turks and the Metropolitan of
Moscow was no longer appointed by the Patriarch
of Constantinople but was elected by the Russian
bishops. Finally, express recognition of the
"autocephaly", i.e., the complete independence,
of the Russian church came in the 16th century
when the Metropolitan of Moscow was raised to
the dignity of Patriarch. The Patriarch ruled the
church until 1700 when Peter the Great forbade
the election of a new Patriarch and established
the Most Sacred Governing Synod, consisting of a
Procurator appointed by the Czar, and several
metropolitans and bishops, to govern the church in
place of the Patriarch. This form of church gov-
ernment continued for over two hundred years
until 1917.
During that period, the Russian Orthodox
Church conducted missionary activities in many
parts of the world. A mission was established in
1793 in the then Russian territory of Alaska, and
spread down the Pacific coast. In 1870, the mis-
sion had grown to the extent that the Diocese of
Alaska and the Aleutian Islands was created with
its See at San Francisco. Since it extended from
Alaska through Canada to San Francisco, we shall
refer to it herein as the North American Diocese
or as the diocese.
A New York City congregation of the Russian
Orthodox Church was established in 1893, incor-
porated in 1899, as already noted, and completed
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
64
St. Nicholas Church in 1903. In 1905, when the
See of the diocese was moved from San Francisco
to New York, the church became a cathedral oc-
cupied, in accordance with the rules of the church,
by the ruling bishop, of the diocese. Throughout
that period, the paramount jurisdiction of the
Most Sacred Governing Synod in Russia over the
North American Diocese was recognized and un-
questioned.
Such was the condition of the Russian Orthodox
Church and its North's American Diocese until 1917
-the year of the Kelrensky revolution in Russia.
Following the overthrow of the czarist regime,
a great "Sobor" Sobor" or, convention of the Russian
Orthodox Church was called. This sobor of 1917-
15,, it is conceded here by all parties, had indis-
putable canonicity and validity. The sobor re-
established the Patriarchate and elected thereto
Patriarch Tikhon, the "arch-prelate" and "head
of Church Administration", the first such since
Peter the Great. The Patriarch, as the head of
the Sacred Synod and of the Supreme Church
Council, constituted the Supreme Church Author-
ity and ruled the Russian Orthodox Church. Other
enactments of the soboor provided a procedure for
the local election of diocesan bishops and the con-
firreation of such election by the Supreme Church
Authority. It also provided that the Patriarch
might call a sobor every three years and that he
should preside over it. No sobor was ever called
by Patriarch Tikhon (and he was the only one with
power to do so) prior to his death in 1925.
Up to 1917, the ruling archbishop of the diocese
had been appointed by the central church authori-
ties. Tikhon himself,' later to be Patriarch, was
the diocesan archbishop from 1904 to 1907. Arch-
bishop Platon succeeded him and ruled until 1914
when he returned to Russia and Archbishop Evdo-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
65
kim came in his stead. Archbishop Evdokim re-
mained until 1917 when he too returned to Russia.
All three duly appointed archbishops, in conform-
ity with the rules of the Russian church, used and
occupied St. Nicholas Cathedral as their adminis-
trative headquarters and as a place of worship.
Those three archbishops were in proper and direct
canonical succession and as to that there is no
controversy.
Archbishop Evdokim's departure in 1917
marked the beginning of the difficulties which have
ever since beset the diocese. No discussion of the
Russian Orthodox Church since 1917 is possible
without constant reference to the political condi-
tions upon which its character and its existence
depended. In March of 1917, the Provisional Gov-
ernment. of Kerensky replaced the czarist regime.
The Kerensky Government itself was soon over-
thrown by the so-called. Bolsheviki led by Lenin in
the famous "October Revolution". Prior to his
downfall, Kerensky, as noted, had authorized the
convocation of the great sobor of the Russian
Orthodox Church, which was in session through
the latter part of 1917 and up to February of
1918 and which named Tikhon as Patriarch. Upon
their accession to power, the Bolsheviki, in accord-
ance with the then acknowledged and asserted
principles of communism, attempted by every
means at their command to destroy religion in
Russia. In the years following 1917, church prop-
erty was confiscated, clergymen were killed, exiled
or imprisoned, and Patriarch Tikh.on himself, old
and in poor health but a useful symbol, too valu-
able to be destroyed, was confined under house
arrest and later imprisoned.
This frontal attack upon the church continued
for five years. In November of 1920, however, at
the height of the persecution, Patriarch Tikhon
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
66
issued his now famous ukase No. 362 of 1920.
This document contained "instructions to the
Diocesan Bishops for the case that a given Diocese
be severed from the highest Church Administra-
tion, or in case the latter's activity stop". (Em.-
phasis supplied.) It was provided in part that
"if the highest Church Administration * * * would
for any reason discontinue their church-adminis.-
trative activity", the diocesan bishop, either with
the bishops of neighboring dioceses or, if that
were not possible alone, should "assume the full
hierarchical power" and "do everything possible
to regulate the local church life, and if necessary
* * * organize the diocesan administration suit-
able to conditions created". Other paragraphs
provided for the continuation of such local ad-
ministration of the church if the discontinuance
of activity of the highest church administration.
"should acquire a protracted or even permanent;
character". Finally, it was provided that "all
measures that were taken locally in accordance
with the present instructions * * * must be sub-
mitted for confirmation later to the Central.
Church Authority when it is re-established."
The apparent forebodings of Patriarch Tikhon,
which prompted this ukase, proved accurate, for
in the spring of 1922 he was arrested and im-
prisoned. The Russian Government, then, for its
own purposes, as later became evident, permitted
a group of priests to visit Tikhon and they pro-
cured from him a letter authorizing the transfer
of certain business papers of the church to a
named archbishop (Agathangel) who was to be
his representative. Instead of doing that, the
recipients of the letter-members of a radical
group styling themselves the "Living" or "Reno-
vated" church-declared themselves to be the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Supreme Authority of the Russian Orthodox
Church and purported to authorize and summon
the pseudo-sobor of 1923. Patriarch Tikhon later
referred to them as "ambitious and wilful men"
who took advantage of the situation "to usurp
the highest clerical power of the Orthodox
Russian Church which did not belong to them",
and he denounced their statements as "nothing
but lies and deception". It is now conceded here
that this was a schism which is now extinct.
Nevertheless, while Tikhon was still in prison,
this schismatic group purported to call another
sobor of the church although power so to do re-
sided only in the Patriarch Tikhon, as we have
seen. There is evidence that they were aided and
abetted in their plan by the Russian Government
which permitted them to proceed while killing,
arresting or exiling those members of the church
who objected. This new pseudo-sobor met in
1923.1 Tikhon was roundly and vehemently con-
demned by all the speakers. The patriarchate
was dissolved and Tikhon, reviled and denounced
1 The minutes of its deliberations contain frequent
obsequious expressions of praise of and devotion to the
Soviet Government. Lenin was referred to as "the
world's leader" and the Soviet Government was said
to be "the only one in the world of all time of the
existence of mankind, to fight actually for good and
equality." A resolution was adopted which declared
that the world was divided into two classes-the capital-
ist exploiters and the proletariat-and continued: "The
Christians cannot be indifferent spectators of that battle.
The Sobor declares capitalism to be a mortal sin, and a
battle with capitalism to be holy to Christians. In Soviet
Authorities the Sobor sees a world's leader for fraternity,
equality and peace of nations. The Sobor stigmatizes
the international and national counter-revolution and
condemns it with all its religious and moral authority."
Christians "through the entire world" were called upon
to "bring into life the principles of the October Revolu-
tion. "
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
as an apostate and l traitor, was unfrocked. The
church created by the pseudo-sobor of 1923 was
called the "Living 1'Church" or the "Renovated
Church". It was schismatic and had no canonical
validity. That facts it should again be noted, is
conceded by all the 'interested parties here.
The turmoil and the turbulence with which the
Russian Orthodox Church was beset in Russia was
not without its echoes in this country. Bishop
Alexander of Canada became acting head of the
diocese by designation of Archbishop Evdokim
(see p. 6, herein). Several conventions were held
in this country at which the status and fate of the
North American Diocese were discussed and
measures were proposed to preserve it from dis-
integration or the usurpation of pretenders.
Archbishop Platon, who had ruled the diocese
from 1907 to 1914, in proper canonical succession,
returned to this country in 1921. He succeeded
in restoring peace and order in the diocese, and
prominent churchmen of the diocese urgently
petitioned Patriarch'.., Tikhon to reappoint him
formally as archbishop of the diocese. This was
just before Tikhon' was actually imprisoned.
While he was technically at liberty, his visitors
in Moscow were being watched and interrogated
carefully, and his correspondence, especially with
Americans, was systematically searched. The
American entreaties regarding Archbishop Platon
were relayed to the Patriarch by a representative
of the Y.M.C.A. who was in Moscow. The Patri.
arch, in the presence of another witness, Bishop
Pas,hhovsky, assured him that Platon would be
appointed the ruling !bishop of the diocese and.
that he would issue papers to that effect. The
Patriarch asked that ?laton be notified immedi-
ately, but it was agreed that it would' not, be
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
possible at that moment to put the appointment
in writing because of the constant surveillance of
the civil authorities and the fear that any such
communication, if seized, would endanger the
safety or the life of the Patriarch. The Patri-
arch's intention and will were transmitted to
Archbishop Platon by the Y.M.C.A. representa-
tive and Bishop Pashhovsky. Alexander, the act-
ing archbishop, recognized in writing Platon's
appointment as ruling bishop of the diocese, as
did the bishops of the church outside Russia.
Tikhon was imprisoned by the Soviet Government
immediately after making this oral appointment.
A diocesan convention was held at Pittsburgh in
October, 1922, and after investigating the situa-
tion Platon was acknowledged as the ruling
bishop. Platon accordingly took possession of
St. Nicholas Cathedral and exercised administra-
tive supervision over the diocese.
Patriarch Tikhon was released from prison in
the latter part of 1923, after the pseudo-sobor of
that year had completed its work. Under date of
September 20, 1923, from a monastery, he signed
an order directed to Platon advising him that,
with the concurrence of the Sacred Synod, "hav-
ing taken cognizance of the situation of the
American Church we deemed it necessary to ap-
point you to rule the North American Church".
Meanwhile, one John Kedrovsky, a priest of
the Russian Orthodox Church in this country,
had, in 1918, commenced an action in this State
on behalf of himself and other priests against
the association or corporation known as the Arch-
bishop and Consistory, which was a managing
and advisory group handling the affairs of the
diocese. In that complaint Kedrovsky asserted
that lie was one of the clergy of the Russian
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Orthodox Greek Catholic Church of North Amer-
ica; that it was a religious denomination of
about 300 churches with about 300,000 members
organized in various unincorporated parishes or
bodies throughout North America2; that his
lawful archbishop was Archbishop Evdokiim
(Meschersky) who bad departed from the United
States for Russia about August 6, 1917, and
had since remained there; that Alexander
(Nemolovsky) was then a bishop of the church
in Canada and had been assuming to act as the
acting archbishop of the church pursuant to a
cablegram from the lawful Archbishop Evdokim
but that in truth no, such appointment had been
made by Archbishop Evdokim and that Alexander
was therefore a usurper.
After the institution of that action, but before
trial, the aforementioned psuedo-sobor of 1923
was held in Moscow. It created the "Living
Church" or "Renovated Church", which, as
noted, is now conceded to have been schismatic
and uncanonical. Iedrovsky, the same priest
who in his 1918 action had asserted that he was
subject to Archbishop Evdokim as the true arch-
bishop of the North American Diocese, procured
from this "Renovated Church" certain creden-
tials in the latter part of 1923. One document
purported to consecrate him as North American
archbishop and to excommunicate and condemn
Archbishop Platon. The other documents con-
tained Kedrovsky's formal appointment as arch-
2 On the trial, he introduced in evidence an exhibit
which listed deeds- of 135 church properties to Bishop
Alexander in Alabama, Alaska, California, Colorado,
Connecticut, Illinois, Indiana, Massachusetts, Michigan,
Minnesota, New Jersey, New York, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, Texas, Washington
and Wisconsin.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
bishop of the North American Diocese and a full
power of attorney to act for the church.
In March, 1924, he commenced another action,
this time asserting that he was the lawful arch-
bishop of the North American Diocese, in order to
gain control of St. Nicholas Cathedral, the sub-
ject premises in the case at bar, which he then
conceded had been possessed by Bishop Alexander
in 1919 "as the do facto or acting archbishop".
As noted, Archbishop Platon was occupying the
cathedral in 1924 by virtue of his oral appoint-
ment by Patriarch Tikhon and the written con-
firmation thereof in September, 1923.
In March of 1924, immediately prior to the in-
stitution of the cathedral action by Kedrovsky, a
document, dated February, 1924, appeared in the
newspapers here purporting to have been issued
by the Patriarch Tikhon accusing Platon of en-
gaging "in public acts of Counter-Revolution
directed against the Soviet power and of disas-
trous consequences to the Orthodox Church". It
provided for the dismissal of Platon "from the
day on which this Present Decision is announced
to him", by a new ruling bishop who was to be
chosen. The publication of this decree, dated less
than five months after the patriarchal order con-
firming Platon and the legal action instituted by
Kedrovsky, caused bewilderment among the mem-
bers of the diocese. A North American sober was
called and held at Detroit in April of 1924 to con-
sider the situation, excerpts from the minutes of
which appear in the record.3
8 The purported new order of the Patriarch was com-
pared with his recent decree confirming Archbishop
Platon, the language of the new order was analyzed and
found to be couched in terms similar to those used by
the schismatic Kedrovsky, and there were comments upon
the very serious condition of the Patriarch's health. (He
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
It was pointed out that the North American
Diocese, for a good many years, had been "cut
off from the highest organ of the administration
of the Russian Church" and that that situation
made operative the'' above-quoted ukase of 1920
providing for local' administration and election
of bishops. The sober then adopted resolutions
asking Platon to head the administration of the
church. Another resolution emphatically stated
it to be the will of the sobor "not to break at all
the spiritual ties and communion with the Rus-
sian Church, but always to pray for her good".
The "final regulation" of the status of the North
American church was to be left to "a future
Sobor of the Russian Orthodox Church which will
did, in fact, die the next year, in April of 1925.) It
was concluded that "somebody in Moscow is extracting
decrees from the sick Patriarch and is using those decrees
against him", and in particular that the decree of Feb-
ruary, 1924, was "undoubtedly forced by the Soviet
power". Another speaker stated : "The fact that the
Soviet power still tolerates Patriarch Tikhon is only
because he is an achievable means of influencing opinion
at home and public opinion abroad. I have not the
slightest doubt that all that the Patriarch now does to
administer the Patriarchate he is doing under duress.
Over there it is done very simply : he is summoned to
the respective commissariat and presented with decrees
prepared beforehand which he is `to execute'. As every-
thing is done to `consolidate the conquests of the revolu-
tion' his refusal to comply with the demands of the Soviet
power will be openly called counter-revolution andsabo-
tage. " It was said that if such forced acts of the
Patriarch continued, the'i North American Diocese would
be subject to "all kinds of surprises, which could basic-
ally undermine that church order and peace which have
with such great labor already been practically arranged"
by Archbishop Platon, and "would involve our Church
her,- in a condition of that same anarchy under the ban-
ner of which church life In Russia exists at present *
We must create our own firm Church administration,
completely insured against possibility of the direct or
indirect influence of the! Soviet power. "
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
be legally convoked, legally elected, will sit with
the participation of representatives of the Ameri-
can Church under conditions of political freedom,
guaranteeing the fullness and authority of its de-
cisions for the entire Church, and will be recog-
nized by the entire Oecumenical Orthodox Church
as a true Sobor of the Russian Orthodox
Church. "
The second or 1924 action brought by John S.
Kedrovsky reached us two years before the 1918
action brought by him. In that 1924 action there
was evidence as to most of the facts already de-
tailed. However it was not there conceded as it
is now that the "Renovated Church" had been
schismatic in origin and had been later absorbed
by or merged with the patriarchal church nor that
the 1923 sobor was not considered as having com-
plied with canonical requirements because it was
not convened pursuant to a call by the Patriarch
and the Holy Synod. Moreover, in that action
there was not before the court ukase No. 362 of
1920 of Patriarch Tikhon. The Appellate Divi-
sion (214 App. Div. 483) stated that "The va-
lidity of Kedrovsky's appointment really depends
upon the validity of the second Sobor [that of
1923] as it is called." (P. 487.) It then found
(contrary to what is now conceded to be the fact)
that the sobor was properly called and that the
"Renovated Church", created by it, had the
power to appoint Kedrovsky as the ruling bishop
of the North American Diocese. When the ap-
peal from that decision reached us we treated it
as one involving only questions of fact as to
whether (1) there was a governing body of the
church and whether (2) that governing body had
recognized Kedrovsky as archbishop of the
church. We determined that there was evidence
to sustain the findings of the Appellate Divi-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
74
sion on both of those points. We thereupon
affirmed the judgment, one Associate Judge be-
ing recorded as absent. (Kedrovsky v. Ro jdes-
vensky, 242 N. Y. 547 [1926].) The control of alll
phases of Russian life by the Government was
not as apparent in 1924 as it is a quarter of a
century later and on the surface, at least, the case
appeared to be a proper one for the application
of the rule that in an ecclesiastical dispute involv-
ing a denominational church, the decision of the
highest church judicatories will be accepted as
final and conclusive by the civil courts (Trustees
of Presbytery of N. IF. v. Westminster Presbyt.
Church, 222 N. Y. 30~, 315; Watson v. Jones, 13
Wall. [U. S.] 679, 714-727; Religious Corpora-
tions Law, ?? 4, 5).
Two years later there was presented the orig-
inal. or 1918 action commenced by Kedrovsky, as
a priest of the patriarchal church, on behalf of
himself and all others similarly situated. It had
been brought against the "Archbishop and Con-
sistory of the Russian Orthodox Greek Catholic
Church, alleged corporation", and others. Arch-
bishop Platon (Rojdesvensky) was again an ap-
pellant. In that action a receiver pendente lite
had been appointed and the judgment at Special
Tern directed that the defendant Platon and
other defendants deliver over to such receiver,
who in turn was directed to deliver to plaintiff
John S. Kedrovsky, all the properties and deeds
thereto held by Bishop Alexander and conveyed
by him to the general, board of trustees by the
exhibit dated June 7, ];921, which listed and enu-
merated all of the 135: church properties in the
19 States and the Territory of Alaska heretofore
referred to. That judgment was unanimously
affirmed by the Appellate Division (220 App. Div.
750). We, however, granted leave to appeal. The
decision of the Appellate Division there was cor-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
rect and unassailable if by our affirmance in Ked-
rovsky v. Rojdesvensky (242 N. Y. 547, supra),
we had adopted the view that the properties of
the North American Diocese were required to be
administered by an appointee of the central au-
thorities of the patriarchal church as it then
existed in Russia, whatever the status and char-
acteristics of the church there might be, and that
Kedrovsky had been validly appointed by such
authorities. We, however, declined so to consider
our earlier affirmance in the cathedral case two
years before. Realizing that the legitimate claims
of the North American Diocese, whose temporary
autonomy had but recently been declared, were
entitled to consideration under the circumstances
disclosed, we unanimously reversed the judgments
below. (Kedrovsky v. Russian Catholic Church,
249 N. Y. 75 [1928].)
We pointed out that the title to the properties
"was either in Archbishop Nemolovsky [Alex-
ander] for the benefit of the faithful of the church
within his diocese, or in the defendants [Platon
and the general board of trustees] to whom he
attempted to transfer his trusts * * * or in the
faithful of the church themselves." (P. 77.) We
further noted that in none of those views was title
in the members of the Consistory, then headed by
Kedrovsky. Then, taking cognizance of the doubt
as to Kedrovsky's status as archbishop by ap-
pointment of the "Renovated Church", and of the
declaration of administrative autonomy by the
American church at Detroit in 1924, we said (pp.
77-78) : "In view of the dissensions that have
arisen, the Supreme Court may well conclude that
the title should be vested in some other trustee
who may be relied upon to carry out more effec-
tively and faithfully the purposes of this religious
trust (Carrier v. Carrier, 226 N. Y. 114). Whether
such trustee should be the plaintiff, who is the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
present Archbishop,, or the incorporated Arch-
bishop and Consistory, or some one else, we do
not now determine. This question is one to be
passed upon by the Supreme Court in its discre-
tionary supervision of the conduct of trustees.
That discretion has not been exercised by any
judgment yet pronounced. * * *"
That 1928 decision by this court thus recognized
that the difficulties of the Russian Orthodox
Church in this country differed substantially from
the situations presented in the Westminster and.
Watson cases (supra), and that those cases were
not helpful in the solution of the problem. The
problem, indeed, was one which strained the limits
of judicial power, and we deemed it proper to re-
turn the case to the Supreme Court leaving it to
that court, after full consideration of the facts, in
the exercise of its discretionary power, to achieve
a result whereby the faithful of the Russion Orth-
odox Church in this country might enjoy their
accustomed religious temporalities under the
supervision of trustees who might "be relied upon
to carry out more effectively and faithfully the
purposes of this religious trust".
While this litigation was in progress, the Soviet
sponsored "Renovated Church" was the only one
permitted to function in Russia, the central office
of the patriarchal church being suppressed by
the Government. Despite this State assistance,
the "Renovated Church" had no popular follow-
ing and few adherents outside its own clergy. In
a few years it joined With and was absorbed by
the patriarchal church. For two years, after Tik-
hon's death in 1925, there was no Patriarch of
the Russian Orthodox Church. Then in 1927, one
Sergius, the Metropolitan of Moscow, made peace
with the Soviet Government and concluded an
agreement with it under which the central office
of that church was permitted to reopen, after
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
77
acknowledging its "loyalty" to the Government
and promising to secure similar written pledges
of loyalty from the clergy of the church abroad.
No election to fill the office of Patriarch was per-
mitted. Instead, Sergius was appointed the act-
ing loeu'm tenents of the patriarchal throne. Un-
successful discussions subsequently ensued with
a view toward reuniting the North American
metropolitan district with the patriarchal church.'
Under the leadership of Metropolitan Platon
following the creation of the administratively au-
tonomous metropolitan district by the Detroit
sobor of 1924, to which reference will be made
hereafter, the church grew and prospered. With
the exception of schismatics such as Kedrovsky,
who was recognized by no one but who occupied
St. Nicholas Cathedral by virtue of the decision
and injunction of 1924, the North American church
followed Metropolitan Platon. In 1933, the Act-
ing Locum Tenens, Sergius, dispatched one Ben-
jamin (Fedchenkoff) to the United States in order
to take over the administration of the metropoli-
tan district from Platon, whose proclamation of
autonomy was declared to be "null and void".
Sergius also purported to excommunicate Platon
and all the clergy and laymen who followed him,
until they submitted themselves to the jurisdiction
of the patriarchal Exarch Benjamin (in America)
or directly to the Acting Locum Tenens (in Mos-
cow). Finally in 1934, Sergius appointed his am-
bassador, Benjamin, as "permanent Ruling Bishop
4 The position of the Russian church in America ap-
pears to have been that no such pledge of loyalty to the
Russian Government as demanded could be given by the
clergy here and that the church in Russia was becoming
a slave to the atheistic Russian Government and was aid-
ing it in its fight against all religion. In view of those
conditions, the Russian church here felt it had no alterna-
tive but to insist upon temporary autonomy envisaged
by the ukase No. 362 of 1920.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
78
of the Russian North American Diocese':'. The
text of the order contains a recital that Benjamin
had "organized in'New York a Diocesan Council
and that our North, American Diocese has begun
official existence." (Emphasis supplied.) This
would appear to be a significant admission that
the former North American Diocese, which had
by that time become a metropolitan district, had
achieved practical administrative
autonomy and
that it was necessary for the Russian church to
organize a new diocese. By 1945, the number of
parishes which recognized the new diocese set up
by Benjamin in 1934, and which we must assume,
in view of the provisions of the Religious Corpo-
rations Law since '1875, were organized for the
purpose of adhering to such new diocese set up by
Benjamin, was only 13, while those adhering to
the autonomous metropolitan district were said to
total 358.
Platon died in 1934 and another sobor of the
American church convened at Cleveland. Bishop
Theophilus (Pashkovsky) was elected as 'ruling
bishop and has served as such since. The tempo-
rary autonomy of the North American metropoli-
tan district created in 1924 was reaffirmed, and
rules for the administration of parishes were
adopted. Another sobor at New York in 1937
again confirmed the temporary autonomy of the
North American metropolitan district. The cen-
tral church authorities in Moscow immediately
issued a decree suspending and excommunicating
Bishop Theophilus.
In 1934, John S. Kedrovsky, the schismatic, also
died, but his son, Nicholas, continued to occupy the
St. Nicholas Cathedral, even though by that time
the "Renovated Church" had ceased to exist.
Nicholas remained there until 1944, .when he too
died, and possession of the cathedral passed in-
formally to his brother, John, who claimed to be
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
a priest by virtue of an ordination of the "Reno-
vated Church".
In 1940, the status of the metropolitinate again
came before this court in Waipa v. Kushwara (259
App. Div. 843, motion for leave to appeal denied
283 N. Y. 780). That was a suit to oust a priest
from a Russian Orthodox Church in Yonkers,
N. Y. He had been suspended by Archbishop
Theophilus of the metropolitan district and in the
civil action brought against him, he defended on
the ground, among others, that Benjamin, the
appointee of the Moscow Patriarchate and not
Archbishop Theophilus, the elected metropolitan,
had the power and authority to administer the
affairs of the church here. The lower courts re-
jected that contention, finding authority for the
creation of the administrative autonomous metro-
politan district in the ukase of 1920 of Patriarch
Tikhon which was to continue "until such time as
the existing civil authorities * * * would cease in-
terfering with the church." (N. Y. L. J., Jan. 6,
1940, p. 97, col. 5.) We denied leave to appeal.
Following the invasion of Russia by Germany
in 1941, the Soviet Government, fighting for survi-
val, apparently found it expedient to permit a
somewhat broadened area of activity to the Rus-
sian Orthodox Church in that country. Then,
following the death of Sergius in 1944, it con-
sented to the convening of a sobor at Moscow in
January of 1945. The news which was permitted
to seep out of Russia after 1941 encouraged the
hope in the members of the metropolitan district
that unity might again be found.'
5 As stated in an official report of the metropolitan
district, "It seemed, in form at least, that the mother
church was being restored to a position of dignity and
usefulness. * * * The time appeared to be ripe for a
discussion of the terms on which the two churches might
be reunited. "
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Suddenly, without advance notice, an' invita-
tion was received for the North American church
to be represented ',at the new sobor in Moscow.
'Four delegates were hurriedly chosen-three
clergymen and one layman, the attorney for the
church-who made preparations to travel to
Alaska, from which place the Russian Govern-
ment was to provide transportation to Moscow.
After two of the clergymen had started, the Soviet
Government cancelled the visa of the attorney on
the pretext that entry was permitted only to
clerical persons-a restriction which was not
observed with reference to the delegation, from
Yugoslavia. The two clergymen who had already
left were met by a Russian airplane which was to
carry them to Moscow. Instead, they were landed
in Siberia and transferred to a train to continue
their journey. As a result, they arrived in Mos-
cow ten days after the sobor had adjourned.
They found that one Alexy had been named
Patriarch of the Russian Orthodox Church, and
they presented to him a report of the church in
North America and a request for the lifting of
the spiritual separation on terms of autonomy.
In return, they were handed a prepared document,
the so-called ukase of February, 1945, for delivery
to Metropolitan Theophilus. The terms of this
ukase were not acceptable to the North American
church. Instead of the necessary autonomy; the
ukase provided for the calling of a sobor in
America to be presided over by an archbishop sent
from Russia. The sobor was to be required to
declare in the name of the church "its abstention
from political activities against the U. S. S. R. and
give corresponding orders to all parishes ". There
was no comment or provision concerning the status
of Metropolitan Theophilus, the elected head of
the North American church. Instead, the sobor
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
was to be required to elect a new person to be head
of a new metropolitan district. Two representa-
tives of the then Moscow Patriarchate were recom-
mended as candidates for the position, and the
right was reserved to refuse confirmation of the
person chosen "if he be considered unsuitable by
the Patriarchy, for any motivated reason whatso-
ever". There was an intimation that "some ex-
tended powers" might be given to the person so
chosen and confirmed, "but the right to confirm
candidates for bishop, the right to reward the
clergy with higher titles, and the right of appeal
as regards bishops, clergy and others, remain with
the Moscow Patriarchy."
A council of the bishops of the North American
metropolitan district met in May, 1945, and de-
cided that the terms proposed in the ukase of
February, 1945, were not acceptable.'
s In an official report to the clergy and laymen, pub-
lished in July, there was a full discussion of the back-
ground and necessity of the 1924 declaration at Detroit
of temporary autonomy for the North American metro-
politan district. Reference was made to the recent efforts
at unity, the chicanery by which the American delegates
were prevented from attending the Moscow sobor, and
the substance of the ukase then issued. The report
emphasized that the metropolitan district considered it-
self as part of the Russian church and desired that the
suspension be lifted. It was pointed out, however, that
the text of the ukase disclosed that the Moscow Patri-
archate had "little conception of the conditions of church
life in this country, and of the atmosphere of religious
and political freedom in which the American Church has
developed." Then followed a point-by-point analysis of
the ukase. One of the major obstacles was the insistence
of the patriarchy upon renunciation of political activities
against the U. S. S. R. The report said : "It would be
inconsistent with the duties and obligations of loyal
American and Canadian citizens, and contrary to the
traditional atmosphere of freedom of speech and political
action in these countries, for the Russian Church in
America to give the pledge of loyalty to a foreign power
which is implicit in the demand of the Patriarchal
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
The attempts at reconciliation having met with
failure, the metropolitan district decided to com-
mnence this action to recover possession of St.
Nicholas Cathedral, which by custom and rule had
always been the See of the Russian Orthodox
Church in North America and the residence and
place of worship of the ruling bishop of the church
in North America. Technically, the plaintiff in
this action is the corporation, I I Saint Nicholas
Cathedral of the Russian Orthodox Church of
North America". When the land for the proposed
cathedral was acquired in 1899, title was taken in
the name of a religious corporation organized pur-
suant to the Religious Corporations Law of 1895
(L. 1895, ch. 723, ? 50) which provided that the
incorporators of such Orthodox churches should
be, by virtue of office, the Russian Ambassador
and the Consul General. This corporation, so
formed, retained title until 1925, with the exce:p-
tion of one year (1916-17) when title was, tem-
porarily placed in the name of the then ruling
Archbishop Evdokim to whom John S. Kedrovsky,
when he brought his 1918 action, was subject, as a
priest and whom he, in his complaint, recognized
as the true head of the North American Diocese.
In 1925, a special act of the New York State
Legislature (L. 1925, ch. 463) created the plaintiff
corporation, composed of Metropolitan Platon and
others of the metropolitan district, to which the
old. or 1899 corporation transferred the cathedral
property. The deed was signed by the Russian
Ukase." Another stumbling block was the vagueness
of the ukase as to the powers of the North American
church. It was felt that "the precise nature of the
relationship between the two churches should be defined
in advance. This is particularly necessary in view of the
precarious situation of the mother church, existing as it
does by sufferance of a totalitarian regime."
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Consul General, but not by the other statutory
incorporator, the Russian Ambassador, as we did
not then recognize the Russian Government in that
country. That necessary defect was cured, and
all such deeds validated by a subsequent act of our
Legislature. (L. 1942, ch. 206.) Moreover, the
corporate existence of the plaintiff corporation
was specifically confirmed by still another act of
our Legislature (L. 1945, ch. 817), "notwithstand-
ing any nonuser by said corporation of its cor-
porate rights, privileges and franchises or the
lapse of any period of time during which said
corporation was inactive." The plaintiff corpo-
ration, accordingly, is the present owner of the
record title to St. Nicholas Cathedral. This is not,
however, the ordinary ejectment action, in which
proof of such title and of an ouster would consti-
tute ground for relief. Since 1875 (L. 1875, ch.
79), our Legislature has provided for the denomi-
national control and administration of church
properties and temporalities. (See Religious Cor-
porations Law, ? 5.) The corporate owner of the
title thus holds the property in trust for the
religious body for whose use it was dedicated.
Plaintiff does not dispute this trust theory, but on
the contrary relies upon it. Plaintiff has endeav-
ored to prove that the beneficial use of the prop-
erty today rightfully belongs to the Russian
church in America (Religious Corporations Law,
? 105) which was forced to declare its administra-
tive autonomy at the Detroit sobor of 1924 in order
to preserve and adhere to those principles and
practices fundamental to the Russian Orthodox
faith, free from the influence of an atheistic and
antireligious foreign civil government.
The action, as stated, was commenced against
John Kedroff, the second son of John S. Kedrov-
sky, in April, 1945. Apparently fearful of his
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
anomalous status, as a cleric of a concededly ex-
tinct church (the "Renovated Church"), Kedroff
.made overtures to Benjamin, the representative
of the Moscow Patriarchate, and in October, 1945,
was reordained by Benjamin and thereupon sur-
rendered the cathedral premises to Benjamin, as
head of a new diocese of a different church. We
must remember that Benjamin never possessed or
occupied the cathedral until after the commence-
ment of this action on April 9, 1945, against the
defendant Kedroff. Benjamin was not originally
a. party herein because he was not an occupant
of the cathedral but was later permitted to inter-
vene. Kedroff, the second son of Kedrovsky, was
but a priest of the schismatic "Renovated
Church" and thus could not have defended this
action as an occupant of the cathedral. He there-
fore went to Benjamin, recognized him as the
"Chief Church Authority", and said "Ordain me
all over again" and had himself reordained as a
priest by Benjamin in what must have been the
latter's new diocese. When Benjamin did so reor-
dain Kedroff as a priest, the latter "gave" the
cathedral to Benjamin according to Benjamin's
counsel here. Thereafter, in order to obtain an
adjournment in this action, Benjamin stipulated
to and did give up possession of the catherdal on
June 6, 1947. At the time of the trial, when he was
called by the plaintiff only, Benjamin was living
at 38 Halsey Street in Brooklyn. Benjamin was
therefore an occupant of the cathedral only from
October, 1945, a time subsequent to the commence-
ment of this action, until June 6, 1947.
Kedroff had interposed a general denial to
plaintiff's complaint. After Benjamin, following
such surrender by John Kedroff, took over the
cathedral, he was permitted to intervene and in-
terpose the present amended answer setting up
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
85
four affirmative defenses. Only the first need con-
cern us here. The second, third and fourth de-
fenses, i.e., nonuser and lack of authority in
plaintiff, the Statute of Limitations and laches,
respectively, were either ignored, abandoned or
found in plaintiff's favor below. There was little
or no discussion concerning them and they have
been effectively eliminated from the case. The
first affirmative defense sets up Benjamin's ap-
pointment and his asserted right to occupy the
cathedral by virtue of such appointment to that
office.
Before this action was commenced a new article
of the Religious Corporations Law, 5-C, was passed
by both houses of the New York Legislature. It
was subsequently signed by the Governor. This
legislation had a conclusive effect upon the issues
presented in the case at bar and will be discussed
at length below. Quite apart from this legislative
action with respect to the specific dispute here
involved, we think that, as a matter of common law
as intimated by our 1928 decision in Kedrovsky v.
Russian Catholic Church (249 N. Y. 75, supra),
there was ample basis and room for an exercise
of the discretionary power of the Supreme Court
over the conduct of trustees, in favor of the North
American metropolitan district. We think that
in the light of historical facts and the evidence in
the records before us, the conclusion would have
been fully warranted that the leaders of the North
American metropolitan district are the trustees
Iwho may be relied upon to carry out more effec-
tively and faithfully the purposes of this religious
trust" (pp. 77-78), i.e., who may administer the
temporalities of St. Nicholas Cathedral for the
benefit of the faithful for whose use it was orig-
inally dedicated.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
86
The courts below, in granting judgment herein
to defendants, did not determine, in the exercise
of their discretion, whether defendants could be
relied upon to carry out faithfully and effectively
the purposes of the religious trust. The West-
minster and Watson cases (supra), were cited and
the conclusion drawn that St. Nicholas Cathedral
must be occupied by an archbishop appointed by
the central authorities in Moscow and that Ben-
jamin, who was so appointed, was therefore
entitled to the possession of the cathedral. This,
we think, was error. The determinative issue in
the case, apart from the action of the Legislature
with respect to the problem, was whether there
exists in Moscow at the present time a true central
organization of the Russian Orthodox Church
capable of functioning as the head of a free inter-
national religious body. If the Moscow patri-
archal throne has been resurrected by the Soviet
Government solely as a means of influencing
opinion at home and abroad, and if it may now
operate on an international scale, not as a true
religious body, but only as an extension or imple-
mentation of Russian foreign policy, then it is
clear that the North American metropolitan dis-
trict and not the appointee or ambassador of the
central authorities in. Moscow, is the proper trus-
tee to manage for the benefit of the faithful in this
hemisphere those religious temporalities dedicated
to the use of the Russian Orthodox Mission and
Diocese prior to 1924 when it became an adminis-
tratively autonomous metropolitan district. (Re-
ligious Corporations Law, ?105.)
We know that a nominal church organization
exists in Russia, but that is not enough. We are
told-by the only witness called by the defend-
ants and one who supplied the only testimony to
this effect-that "from 1925 to date, the Church
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
87
has received greater liberty and is functioning
freely as an Orthodox Church, without interfer-
ence by the civil authorities, and the political
views held by the authorities, and any atheistic
sentiment that they may have in no way interferes
with the unhampered activities of the Russian
Orthodox Church." (Emphasis supplied.) On
the other hand, plaintiff urges that, willingly or
not, the Moscow patriarchy is unable to conduct
"church-administrative activity" except as an
arm of the Russian Government to further its
domestic and. foreign policy; that that is a fact
publicly recognized by our President and our State
Department; and that it is attested to and demon-
strated in the records submitted to us by (1) the
imprisonment of Patriarch Tikhon, (2) the sup-
pression of the patriarchal church during the days
of the State-supported schism of the "Renovated
Church" and (3) by the later re-establishment of
an enfeebled patriarchate, when the "Renovated
Church" had served its purpose, willing to pledge
its loyalty to the Russian State and to attempt to
exact a similar pledge from clergy abroad. Having
in mind the warning of Lord COLERIDGE, in Lumley
v. Gye (2 El. & Bl. 216, 267), "Judges are not
necessarily to be ignorant in Court of what every
one else, and they themselves out of Court, are
familiar with", we feel we must accept the his-
torical statements contained in the dissenting
opinion of Mr. Justice VAN Vooarn , below :
"* * * In recent public pronouncements the
State Department, and our representatives in the
United Nations, have frequently recognized and
denounced the suppression of human rights and
basic liberties in religion as well as in other aspects
of life, existing in Soviet Russia and in all of its
satellite states. The President of the United
States has publicly characterized such efforts as a
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
88
campaign to turn religion into a tool of the state
(Armistice Day Address, November 11, 1949).
(276 App. Div. 309, 330.)
Everyone agrees that the Russian Orthodox
Church has continuously existed down through the
centuries, for no communicant would concede that
the suppression of the church by the Soviet Gov-
ernment had ever destroyed the patriarchy as a
spiritual symbol of the spiritual unity of the
church as distinguished from its temporalities.
Moreover, members of the North American metro-
politan district admittedly revere and respect the
office of the patriarchy, whatever may be their
feelings as to the merits of the current incumbent
of the office. This devotion is traditional and
serves as a common bond for the members of the
Russian Orthodox Church, as distinguished from
the members of other Orthodox churches in vari-
ous countries which have recognized as their
spiritual heads at various times the Patriarchates
of Constantinople, of Alexandria, of Antioch, of
Serbia and of Jerusalem. Recognition of the Mos-
cow patriarchy by the North American metropoli-
tan district in that sense is by no means a dis-
avowal of the position steadfastly maintained by
it down to the present day, viz., that the beloved
patriarchy has been absorbed by the Russian Gov-
ernment and its action deprived, during the period
of' such domination, of any religious significance.
In short, we think that further inquiry might
well have been made into the present status of the
patriarchate in Russia and we think the Supreme
Court should have determined, in the exercise of
its discretion, whether Benjamin, the appointee
of the central church authorities in Moscow, or
Metropolitan Theophilus, the archbishop of the
North American metropolitan district, was the
proper person to administer the temporalities of
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
St. Nicholas Cathedral and whether he was the
proper trustee "who may be relied upon to carry
out more effectively and faithfully the purposes
of this religious trust (Carrier v. Carrier, 226
N. Y. 114)." (Kedrovsky v. Russian Catholic
Church, 249 N. Y. 75, 77-78, supra.) That was not
done because it was thought that the cases of
Watson v. Jones (13 Wall. [U. S.] 679, supra),
and Trustees of Presbytery of N. Y. v. West-
minister Prsbyt. Church (222 N. Y. 305, supra),
required a decision in favor of defendants and
that the earlier case of Kedrovsky v. Rojdesven-
sky (242 N. Y. 547, supra), was determinative of
some phases of the problem. Our views on this
aspect of the controversy would require reversal
and the ordering of a new trial so that the Su-
preme Court might exercise its discretion along
the lines herein indicated. It is unnecessary, how-
ever, to discuss that further, for there is another
ground requiring. reversal here and judgment in
favor of plaintiff and the North American metro-
politan district which it represents.
We refer, of course, to the authoritative and un-
ambiguous action finally taken by the New York
State Legislature in 1945 and 1948 with respect
to the controversy which has now occupied the
attention of our courts for a quarter of a century.
If there were any doubt as to the proper deter-
mination of the case along common-law lines, it
has been completely eliminated by the Legislature.
In April of 1945 (L. 1945, ch. 693), the Governor
signed a bill adding a new article 5-C to the Re-
ligious Corporations Law consisting of four sec-
tions, two of which, sections 105 and 107, are pres-
ently material. In 1948 (L. 1948, ch. 711) impor-
tant amendments were made to these sections
which will be noted later. In the first section
(?105), the Legislature defined the "Russian
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Church in America" (i. e., the North American
church as we have referred to it above) and care-
fully traced its origin. The first paragraph of sec-
tion 105, as it reads today, is as follows : "The
`Russian Church in America', as that term is used
anywhere in this article, refers. to that group of
churches, cathedrals, chapels, congregations, so-
cieties, parishes, committees and other religious
organizations of the Eastern Confession (Eastern
Orthodox or Greek Catholic Church) which, were
known as (a) Russian American Mission of the
Russian Orthodox Church from in or about 1793
to in or about 1870; (b) Diocese of Alaska and the
Aleutian Islands of the Russian Orthodox Church
from in or about 1870 to in or about 1904; (c)
Diocese of North America and the Aleutian
Islands (or Alaska)' of the Russian Orthodox
Church from in or about 1904 to in or about 1924;
and (d) Russian Orthodox Greek Catholic Church
of North America since in or about 1924; and were
subject to the administrative jurisdiction of the
Most Sacred Governing Synod in Moscow until in
or about 1917, later the Patriarchate of Moscow,
but now constitute an administratively autono-
mous metropolitan district created pursuant to
resolutions adopted at a general convention (so.-
bor) of said district held at Detroit, Michigan, on
or about or between, April 2nd to 4th, 1924.
(Dates in Arabic; emphasis supplied.)
The second paragraph of section 105, defines
what is meant in the statute by the phrase "Rus-
sian Orthodox church". This is used as a word of
art and is used generally to denote the particular
local buildings or organizations of the Russian
Orthodox faith as distinguished from the spiritual
church. The statutory definition reads as follows :
"A `Russian Orthodox church', as that term is
used anywhere in this article, is a church, cathe-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
91
dral, chapel, congregation, society, parish, com-
mittee or other religious organization founded and
established for the purpose and with the intent of
adhering to, and being subject to the administra-
tive jurisdiction of said mission [(a) above],
diocese [(b) and (c) above], or autonomous met-
ropolitan district [ (d) above] hereinabove defined
as the Russian Church in America." It is to be
noted that the words "Russian Orthodox church"
refer not only to those church buildings and re-
ligious organizations founded and established for
the purpose and with the intent of adhering to,
and being subject to the autonomous North Amer-
ican metropolitan district since 1924, but also to
those properties and organizations adhering and
subject in the past to the Russian Mission from
1793 to 1870, and the North American Dioceses
from 1870 to 1904 and from 1904 to 1924.
These definitions, in turn, make the meaning and
intent of section 107 clear. With them in mind,
the following command of the Legislature in sec-
tion 107 is abundantly plain :
1. Every Russian Orthodox church in this
state, whether incorporated before or after the
creation of said autonomous metropolitan district,
and whether incorporated or reincorporated pur-
suant to this article or any other article of the
religious corporations law, or any general or
private law, shall recognize and be and remain
subject to the jurisdiction and authority of the
general convention (sobor), metropolitan arch-
bishop or other primate or hierarch, the council of
bishops, the metropolitan council and other gov-
erning bodies and authorities of the Russian
Church in America, pursuant to the statutes for
the government thereof adopted at a general con-
vention (sobor) held in the city of New York on
or about or between October 5th to Sth, 1937, and
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
92
any amendments thereto and any other statutes
or rules heretofore or hereafter adopted by a, gen-
eral convention (sobor) of the Russian Church in
America and shall in all other respects conform
to, maintain and follow the faith, doctrine, ritual,
communion, discipline, canon law, traditions and
usages of the Eastern Confession (Eastern Ortho-
dox or Greek Catholic Church).
"3. The trustees of every Russian Orthodox
church shall have the custody and control of all
temporalities and property, real and personal,
belonging to such church and of the revenues
therefrom and shall administer the same in ac-
cordance with the by-laws of such church, the
normal statutes for parishes of the Russian
Church in America approved at a general conven-
tion (sobor) thereof held at Cleveland, Ohio, on
or about or between November 20th to 23d, 1934,
and any amendments thereto and all other rules,
statutes, regulations and usages of the Russian
Church in America." (Dates in Arabic; emphasis
supplied.) Little, if anything, is left for the
courts to construe in the face of such a clear
manifestation of intent. St. Nicholas Cathedral,
the subject property herein, is indisputably a
"Russian Orthodox church", as defined' in the
statute. It was built in 1903 and dedicated as a
cathedral in 1905, in connection with the estab-
lishment of the Diocese of North America and the
Aleutian Islands, which as we have seen, is listed
in the first paragraph of section 105. It is a
"cathedral * * * founded and established for the
purpose and with the intent of adhering to, and
being subject to the administrative jurisdiction of
said mission, diocese or autonomous metropolitan
district hereinabove defined as the Russian
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
93
Church in America." (Emphasis supplied.) As
such, it is within the purview of subdivision 1 of
section 107 and must be subject to the jurisdiction
and authority of the governing bodies of the
North American church. Likewise, pursuant to
subdivision 3 of section 107, the trustees of the
St. Nicholas Cathedral corporation must admin-
ister the cathedral in accordance with the by-laws,
the normal statutes for parishes of the Russian
Church in America as therein defined.
Special Term attempted to construe the statute,
as it stood in 1945, in such a manner as to make it
applicable only to those new parishes, founded
and established after 1924 for the express pur-
pose of adhering to the Russian Church in Amer-
ica. Whether the court's construction was justi-
fied under the then wording of the statute is not
before us, for after the decision at Special Term,
and obviously as a result of it, the Legislature
amended the statute to read in its present form,
above quoted. In order that there might not be
any doubt that the 1945 legislation was intended
to apply to a property, such as St. Nicholas Cathe-
dral, the second paragraph of section 105, defin-
ing "Russian Orthodox church", was amended so
that there was included within its compass any
cathedral "founded and established for the pur-
pose and with the intent of adhering to, and being
subject to the administrative jurisdiction of said
mission, diocese or autonomous metropolitan dis-
trict hereinabove defined as the Russian Church
in America." (New matter italics.) Likewise,
subdivision 1 of section 107, which provides that
every such Russian Orthodox church in this State
shall "recognize and be and remain subject to the
jurisdiction and authority" of the Russian Church
in America, was amended to provide that such
Russian Orthodox churches were within its cover-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
94
age "whether incorporated before or after the
creation [1924] of said autonomous metropolitan
district". (New matter italics.) These significant
amendments, enacted within a month after Special
Term's decision, illustrate beyond cavil that the
decision of that court did not correspond with the
intent of the Legislature, which immediately in-
terpreted and explained its prior enactment.
Nevertheless, the majority in the Appellate
Division, while conceding that plaintiff was en-
titled to the benefit of the statute in its amended
form, failed properly to appreciate and give mean-
ing to what we consider to be the plain legislative
intent. It said in part (p. 317) : I I In other words,
it appears to us that it [?107] was intended to
mean that any church heretofore or hereafter in-
corporated for the purpose of adhering to the
American church must be subordinate to the rules
and the decisions of the authorities of the govern-
ing bodies of that church [the American' church,
the autonomous metropolitan district, created in
1924]. " Such a view gives no meaning to the
change made by subdivision 1 of section 107 by the
1948 amendment. That amendment excised the
three words ("heretofore or hereafter") which
we have italicized in the above quotation, and
substituted the words: "before or after the crea-
tion of said autonomous metropolitan district [in
1924] The following quotation from sub-
division 1 of section 107 shows in brackets the
words eliminated by the 1948 amendment and indi-
cates by italicizing the words substituted by that
amendment: "Every Russian Orthodox' church
in this state, whether [heretofore or hereafter]
incorporated before or after the creation of said
autonomous metropolitan district * * * shall recog-
nize and be and remain subject to the jurisdiction
and authority of * * * the Russian Church in
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
95
America * * *." The Legislature quite clearly
made the amendment after the decision at Special
Term herein so as to remove the possibility of a
construction such as that adopted by the Special
Term and later the Appellate Division, that the
statute was limited in its operation to churches
incorporated after 1924. If, as the Appellate
Division construed it, the statute were limited to
churches "incorporated for the purpose of adher-
ing to the American church", that would mean
that it could only apply to churches founded and
established after 1924, since that was the year in
which the autonomous metropolitan district, de-
nominated by the Appellate Division, the Ameri-
can church, was created. Yet subdivision 1 of
section 107 clearly states that it is to apply to
Russian Orthodox churches "whether incorpo-
rated before or after the creation of said autono-
mous metropolitan district", i.e., before or after
1924. The only construction which gives meaning
to all the language in sections 105 and 107 is that
the statute was intended to apply to those Russian
Orthodox churches founded and established be-
fore 1924 for the purpose of adhering and being
subject to the North American Mission or North
American Diocese, and to those Russian Orthodox
churches founded and established after 1924 for
the purpose of adhering and being subject to the
autonomous metropolitan district. The majority
in the Appellate Division further intimated that
to read the statute literally would result in an in-
terference in ecclesiastical concerns not within
the competency of the Legislature. The latter
suggestion is the only one which requires discus-
sion, for, as already indicated, the intent of the
Legislature (as distinguished from its compe-
tency) is unmistakable.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
96
The primary purpose of the Religious Corpora-
tions Law is to provide for an orderly method for
the administration of the property and temporali-
ties dedicated to the use of religious groups and
to preserve them from exploitation by those who
might divert them from the true beneficiaries of
the trust. Prior to 1875, when the Legislature pro-
vided for denominational control of the temporali-
ties of religious corporations, the majority of the
members of a religious corporation could change
its denominational character and devote the
church property to an entirely different religious
faith than that for which it was originally dedi-
cated. (Robertson v. Bullion, 11 N. Y. 243, 263-
264; Petty v. Tooker, 21 N. Y. 267; Gram v. Evan-
gelical Lutheran Soc., 36 N. Y. 161.) For the public
good, the Legislature decreed that the trustees
of religious corporations, irrespective'! of the
wishes of the majority of the local congregation,
must administer the temporalities in accordance
with the discipline, rules and usages of the eccle-
siastical body, if any, to which the corporation
was subject. (Religious Corporations Law, ? 5.)
As a broad guide this rule undoubtedly has, worked
well, but it is by no means a constitutional doc-
trine not subject to change or modification by the
same Legislature which announced it, in cases
where literal enforcement would be unreason-
able and opposed to the public interest. The
Legislature, in the exercise of its extensive and
acknowledged power to act for the common wel-
fare, may find as a fact that a situation has arisen
of such novelty and uniqueness that existing law
is incapable of performing its avowed function-
the preservation of religious temporalities, for the
use of their original and accustomed beneficiaries.
If the Legislature find as a fact that, because of
drastically changed circumstances, the accus-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
torned beneficiaries of religious properties are
thus threatened with their loss, and if there be
a basis for such finding, we perceive no consti-
tutional objection to a legislative attempt to trace
and identify, as of today, the authentic group
entitled to the administration of such properties.
That, as we see it, is all that the Legislature has
done in the above-quoted provisions of article 5-C.
The Legislature has made a determination that
the "Russian Church in America" was the one
which, to use our words in 249 New York at pages
77-78, was the trustee which I' may be relied upon
to carry out more effectively and faithfully the
purposes of this religious trust (Carrier v. Car-
rier, 226 N. Y. 114) " by reason of the changed
situation of the patriarchate in Russia. No pur-
pose would be served by repeating all the circum-
stances which forced the North American church
to declare its temporary autonomy, and the
process by which the Moscow Patriarchy has
been subjugated by the Russian Government and
used as its tool. All that has been detailed fully
above. These facts must be deemed to have been
found by and to have been within the actual knowl-
edge of the Legislature when it decided to act
.in 1945 and 1948. Even assuming that we, as
judges, are prevented from recognizing these
facts, it cannot be successfully contended that the
Legislature is required to labor under such un-
realistic handicap.
The Legislature of the State of New York, like
the Congress of the United States, in addition to
the general knowledge of its members, has access
to vast sources of information to assist it in de-
termining the need and scope of new statutory
law. Every new piece of legislation is the result
of certain factual premises, whether they be ex-
pressed or tacit. In gathering the material for
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
these premises, and in evaluating conflicting data,
the Legislature is not bound by any formal rules.
It has the widest latitude of inquiry. It cannot,
and does not, close its eyes to any legitimate ave-
nue of knowledge.
The courts have always recognized that it is the
province of the Legislature to make the under-
lying findings of fact which give meaning and sub-
stance to its ultimate directives. The courts have
traditionally refused to consider the wisdom or
technical validity of such findings of fact, if there
be some reasonable basis upon which they may
rest.
Thus, in passing upon matters of legislative
intent and competence, the courts do not merely
read the bare end product of the legislative labors.
They read the statute in the light of the state of
facts which were found by the Legislature, and
which prompted the enactment. Then, and only
then, can the courts intelligently approach their
assigned tasks.
A recent pertinent example of such judicial
recognition of the extent of the power of the legis-
lative body to find the facts in a situation involving
communist activity is found in American Com-
munications Assn. v. Douds (339 U. S. 3$2).
There, the noncommunist oath provision in the
National Labor Relations Act was upheld, not
because any such oath requirement was generally
within the power of Congress, but because the
specific evil, the existence of which Congress was
assumed to have reasonably found as a fact, was
such that some infringement upon traditional lib-
erties was justifiable. The case illustrates well that
enactments which might seem unconstitutional
on their face may yet be sustained if the factual
background found by the legislative body war-
ranted an extended exercise of its powers. The
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
case is noteworthy, too, in that it rejects the
fallacious contention that the legislative body can-
not go behind a carefully constructed facade to
ascertain the real motives, ends and techniques
of communist activity. It recognizes, as we must
recognize in the instant case, that problems cre-
ated by the extension of Soviet communist activity
in this country are sui generis, and can only be
dealt with intelligently on that basis.
As Justice JACKSON said in his opinion (p. 423,
n. 1) : "Of course, it is not for any member of this
Court to express or to act upon any opinion he
may have as to the wisdom, effectiveness or need
for this legislation. Our `inquiries, where the
legislative judgment is drawn in question, must
be restricted to the issue whether any state of
facts either known or which could reasonably be
assumed affords support for it.' United States v.
Carolene Products Co., 304 U. S. 144, 154." (Em-
phasis supplied.) (See, also, Powell v. Pennsyl-
vania, 127 U. S. 678, 685; O'Gorman & Young v.
Hartford Fire Ins. Co., 282 U. S. 251, 257-258;
Szold v. Outlet Embroidery Supply Co., 274 N. Y.
271, 278.)
The judicial technique of ascertaining the legis-
lative finding of fact supporting a particular en-
actment is shown in Justice JACKSON'S opinion
in the Douds case (supra, pp. 424-433). He wrote
(p. 424) :
"From information before its several Commit-
tees and from facts of general knowledge, Con-
gress could rationally conclude that, behind its
political party facade, the Communist Party is a
conspiratorial and revolutionary junta, organized
to reach ends and to use methods which are incom-
patible with our constitutional system. A rough
and compressed grouping of this data would per-
mit Congress to draw these important conclusions
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
100
as to its distinguishing characteristics. " (Then
follows a footnote containing a long list of books
and articles.) * * *
"It rejects the entire religious and cultural
heritage of Western civilization, as well as the
American economic and political systems. This
Communist movement is a belated counter-revolu-
tion to the American Revolution, designed to undo
the Declaration of Independence, the Constitution,
and our Bill of Rights * * *" (p. 425).
The Legislature of the State of New York, like
the Congress, must be deemed to have investigated
the whole problem carefully before it acted.' The
Legislature knew that the central authorities of
the Russian Orthodox Church in Russia had been
suppressed after the 1917 revolution, and that the
patriarchate was later resurrected by the Russian
Government. The Legislature, like Congress,
knew the character and method of operation of
international communism and the Soviet attitude
toward things religious. The Legislature was
aware of the contemporary views of qualified ob-
servers who have visited Russia and who have had
an opportunity to observe the present status of the
patriarchate in the Soviet system.7 The Legisla-
ture realized that the North American church, in
order to be free of Soviet interference in its
7 Our former Ambassador to Russia wrote : "The new
tolerance for the Orthodox Church can be seen, therefore,
as severely limited and primarily designed to serve as an
instrumentality of an expansive foreign policy. " (Walter
Bedell Smith, My Three Years in Moscow, p. 268). See,
also, Anne O'Hare McCormick in the New York Times,
April 8, 1950 (p. 12) : "The church has again an official
place in the Soviet Union, but as an agency of the state ;
on the same terms the religious leaders being imprisoned
anal executed as `traitors' in the countries under Soviet
control would be tolerated. When Caesar is also God
there can be no divided tribute."
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
101
affairs, had declared its temporary administrative
autonomy in 1924, pursuant to the ukase of 1920,
while retaining full spiritual communion with the
patriarchate, and that there was a real danger
that those properties and temporalities long en-
joyed and used by the Russian Orthodox Church
worshippers in this State would be taken from
them by the representatives of the patriarchate.
On the basis of these facts, and the facts stated
(supra) and no doubt other facts we know not of,
our Legislature concluded that the Moscow Patri-
archate was no longer capable of functioning as a
true religious body, but had become a tool of the
Soviet Government primarily designed to imple-
ment its foreign policy. Whether we, as judges,
would have reached the same conclusion is imma-
terial. It is sufficient that the Legislature reached
it, after full consideration of all the facts.
It is clear, therefore, that the plaintiff corpo-
ration and the autonomous metropolitan district
which it represents, must prevail in this action in
accordance with the legislative finding and man-
date and be reinvested with the possession and
administration of the temporalities of St. Nicho-
las Cathedral.
The judgments below should be reversed, with
costs in all courts, and judgment directed for the
plaintiff.
FROESSEL, J. (concurring). As I view this con-
troversy, we have the rather unusual situation of
a foreign government, which all of us agree is
grossly antireligious, assuming domination and
control over the Russian Orthodox Church, leav-
ing that church fettered, helpless and restrained
of its freedom. Any other view, it seems to me, is
to ignore stark reality. Under that domination,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
102
which is nothing less than plain duress, it seeks
to reach out to the United States to assume con-
trol of church property within this State, title to
which is held by plaintiff, a New York State corpo-
ration, and which property has been dedicated to
the use of members of a parish and of a diocese.
The evidence in the records before us, and as
outlined in the prevailing opinion, buttressed by
facts of historical knowledge of which we may take
judicial notice (Nankivel v. Omsk All Russian
Govt., 237 N. Y. 150, 156), and as found by the
Le;islature of this State (East New York Say.
Bank v. Hahn, 293 N. Y. 622), leads inescapably to
the conclusion that plaintiff is entitled to judg-
ment.
Judge CONWAY has' sufficiently outlined in detail
the history of the Russian Orthodox Church, so
far as pertinent here. We are all in accord that
the election of Patriarch Tikhon at the sobor of
19:L7-18, following the Kerensky revolution, had
indisputable validity, and that Archbishop I*vdo-
kim was the duly appointed diocesan archbishop
for North America in 1917, before he returned to
Russia. It was he who held title to the property
in suit for a short time (1916-17), and then volun-
tarily reconveyed it to plaintiff's corporate prede-
cessor. After Kerensky was overthrown and the
Bolsheviks came into power, the patriarchal chain
of succession was broken. The prevailing opinion
outlines briefly what happened to the Russian
Orthodox Church in Russia. When Patriarch
Tikhon, the last duly elected Patriarch, was im-
prisoned, he issued his famous ukase to the'Rus-
sian Orthodox Church abroad. In 1923, with the
concurrence of the Sacred Synod, he designated
Platon as ruling bishop of the North American
church, who continued until his death in 1934, fol-
lowing his active participation in and approval
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
of the American sobors, commencing in 1922,
which invoked the ukase of 1920.
The first sobor of the Russian Orthodox Church
held since Tikhon was elected Patriarch was the
pseudo-sobor of 1923, at which no Patriarch was
elected, and which is now conceded to have been
uncanonical. The only other sobor held since was
the one at Moscow in 1945, when the American
delegates, two clergymen, were met by a Russian
airplane, but deposited in Siberia instead of Mos-
cow in the month of January, rendering it impos-
sible for them to complete their journey by train
until ten days after the sobor had adjourned, thus
denying them representation though duly invited.
We do not have here any such situation as
was presented in Watson v. Jones (13 Wall. [U.
S.] 679) where the highest church body was con-
cededly free. Here, the Russian Orthodox
Church, as presently constituted and dominated,
is not free, its administrative agency is not the
true body of the church, and is compelled to de-
mand loyalty to the Soviet Government from all
the priests of the Russian church abroad.
By our decision, we are not intruding unlaw-
fully into the internal affairs of a religious body,
but rather refusing to sanction such intrusion by
an atheistic foreign government, so far as it
affects property within our jurisdiction. Plain-
tiff-appellant holds title to the property in suit,
in trust, not for the Russian Orthodox Church,
but rather for the use of the membership for
whom it was dedicated, and, so long as it admin-
isters the property for the faithful of the church
within the diocese, it is entitled to possession and
control. (Westminster Presbyt. Church v. Trus-
tees of Presbytery of N. Y., 211 N. Y. 214.) As
we there said (pp. 225-226), where the ecclesias-
tical governing body's freedom of action was un-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
104
questioned, " The error which, as it seems to me,
pervades the disposition made of this case in the
courts below, is the idea that the Presbytery
could take away from the Westminster Presby-
terian Church of West Twenty-third Street all
authority and control of its trustees over its real
property, and by hostile action appropriate that
property to such uses as it saw fit without any
legal proceeding to that end, and wholly by the
exercise of the ecclesiastical jurisdiction of the
Presbytery." How much more so does this rea-
soning apply to the instant situation.
I concur in Judge CONWAY'S opinion.
DESMOND, J. (dissenting). None of us of
course, deny that the present Russian Govern-
ment is frankly and grossly anti-religious 'and
irreligious. But judicial recognition of that well-
known fact is of no help in deciding this lawsuit.
We are dissenting here because we strongly feel
that this decision is an unlawful intrusion into
the internal affairs of a religious body, contrary
to first principles of American government, vio-,
lative of the First Amendment's guaranty of
freedom of religions from such governmental in-
terference, and in conflict with the controlling
decisional law as set forth in Watson v. Jones (13
Wall. [U. S.] 679) and Westminster Presbyt.
Church v. Trustees of Presbytery of N. Y. (211
N. Y. 214). For the decision about to be made is
just this : that the judicial and legislative branches
of the Government of this State have the power
(and that the New York State Legislature has
exercised the power) to oust from the archdio-
cesan cathedral of the Russian Orthodox Church
in New York City, a prelate (defendant Benja-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
105
min) who has been appointed archbishop of that
archdiocese by the Patriarch of Moscow, supreme
head of that church. No other decision reaching
such a result can be found in the books.
In aid of clarity we set down these indisputable
and uncontested propositions :
1. The Russian Orthodox Church is a "gen-
eral" or centrally organized church (see Watson
v. Jones, supra, p. 722), under whose law and dis-
cipline the Patriarch of Moscow, as its supreme
head, has the power of appointing archbishops.
2. Defendant Benjamin was appointed by the
Patriarch as archbishop of the Diocese of North
America and the Aleutian Islands, and that ap-
pointment is now in effect.
3. The Russian Orthodox Cathedral in New
York City,. is the see church of the archdiocese,
and, accordingly, defendant Benjamin, as the
duly appointed archbishop, is entitled to possess
and occupy that cathedral as his see church.
4. Plaintiff-appellant, a New York corpora-
tion, holds title to the cathedral property but,
under New York law, that title is in trust for the
religious purposes of the Russian Orthodox
Church, and for no other purpose (Westminster
Presbyt. Church v. Trustees of Presbytery of
N. Y., 211 N. Y. 214, 223, supra).
5. Plaintiff, in seeking to exclude defendant
Archbishop Benjamin from possession of the
cathedral, is acting under the control of, and in
the interest of, a dissident or schismatic group
of Russian Orthodox Catholic individuals and
parishes, which group, formed at Detroit in 1924,
refuses to recognize the authority and primacy of
the Patriarch of Moscow.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
106
6. Under the law of New York (see Religious
Corporations Law, ?5), religious denominations,
such as the world-wide Russian Orthodox Church,
have denominational control over their constituent
churches, parishes or branches, and the constitu-
ents cannot escape such control by secession
(Trustees of Presbytery of N. Y. v. Westminster
Presbyt. Church, 222 N. Y. 305, 315).
7. The appointment of Archbishop Benjamin,
as an official act of the highest Russian Orthodox
Church authority, was a decision on a denomina-
tional matter of internal church government, and
as such is final, and absolutely binding on the
civil courts of this State (Watson v. Jones, 13
Wall. [U. S.] 679, 727,, 729, supra).
The sum of those plain propositions is this :
that Archbishop Benjamin's possession of the
cathedral is not subject to control by any civil
authority or by any judgment of a civil court,
and that no civil court may decree to the indepen-
dent or nonconformist group (which controls
plaintiff corporation), possession of that cathedral,
hostile to the authority and action of the mother
church (Watson v. Jones, supra, p. 734).
What bases, then, are announced for the direc-
tion by this court that a judgment issue which will
remove defendant Benjamin from his cathedral?
As we understand it, those asserted grounds are
two : first, that the Moscow Patriarchate is not
in fact functioning as the true central organiza-
tion of the Russian church but is a mere agency or
instrumentality of the Soviet regime; and, second,
that article 5-C of the New York Religious Cor-
porations Law has, by legislative fiat, ousted the
patriarchal appointee, and turned the cathedral
over to the schismatics. The first of those bases
amounts to a new finding by this court, without
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
107
evidentiary support in this record, and in the face
of contrary testimony, and express contrary find-
ings by both courts below. The second basis gives
to article 5-C a construction not reasonably sup-
ported by its language, or by its history, or by any
reasonable or discoverable legislative intent-a
construction which, furthermore, makes the statute
unconstitutional. We now take up these matters
in turn.
The finding, or determination, now being made
by the majority of this court as a basis for re-
versal, is that the presently ruling Patriarch of
Moscow is not, and should not, be treated as, the
true central head of the church, but that he is a
mere fellow traveler on the communist road, serv-
ing not God but the Soviet Caesar. Interestingly
enough, plaintiff itself seems not to cast so cold
an eye on the Patriarch, since the record abounds
with protestations by the "American", or schis-
matic Orthodox Russians, of their filial loyalty
and devotion to the Patriarch, whom they regard
as a virtuous and venerable spiritual leader.
Aside from that, and confining ourselves within
the strict bounds of our own jurisdiction we, the
Court of Appeals, have, of course, no power or
right to adjudicate that the incumbent is no true
Patriarch but a mere usurper or pretender. We
dissenters refuse so to do, not from any mere
naivete as to Russia and communism, but as a
necessary conclusion from the record in this law-
suit. At the very most, we have here the attempted
determination of a fact, vigorously denied by
witnesses, and found to the contrary by the courts
which have jurisdiction to pass on facts.
It is suggested that common sense, or general
knowledge, makes it appropriate for us to take
judicial notice that Patriarch Alexy is not acting
independently but is obeying commands of his com-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
108
munist masters. Perhaps he is, for all we know,
but his motivation is no proper subject of judicial
notice. Many years ago our predecessors warned
us against taking judicial notice in such uncertain
fields (see Baxter v. McDonnell, 155 N. Y. 83,',93).
And, even if we could, somehow or other, get sure
knowledge that the Patriarch's appointment of
this archbishop was made for the most unholy
reasons, or because of the meanest accommoda-
tion to brute power, we still could not, as a court,
strike down the appointment or refuse to give it
credit. The Patriarch, like all men, must account
for his stewardship, but not to the New York
courts.
The long and the short of it is that this is an
ecclesiastical matter, to which, be their answer
right or wrong, the ecclesiastic superiors have the
final answer. 11* * * and civil courts, if they
should be so unwise as to attempt to supervise
their judgments on matters which come within.
their jurisdiction, would only involve themselves
in a sea of uncertainty and doubt, which would do
anything but improve either religion or good
morals" (Connitt v. Reformed Prot. Dutch Church
of New Prospect, 54 N. Y. 551, 562). We are not
;
talking about the powers of courts or of govern-
ment to keep from our shores persons dangerous
to our institutions, be they churchmen or laymen,
or to deal with such persons when and if they wio
late our laws. No one has testified that Arch-
bishop Benjamin is such a subversive, and, if', he
were, the New York courts would hardly be the
place, or an action of ejectment the method, to
arrange for his deportation from our shores. The
United States Government has never withdrawn
recognition of the Russian Orthodox Church and
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
109
its Patriarch (see Ponce v. Roman Catholic
Church, 210 U. S. 296, 318).
We turn now to the statute which seems to be
appellant's chief reliance. Article 5-C of the Re-
ligious Corporations Law, consisting of four sec-
tions (??105-108), was enacted in 1945 (L. 1945,
ch. 693) and amended in 1948 (L. 1948, ch. 711).
Its language follows the general pattern of sev-
eral other articles in the same law. On its face
there is no indication that it had any purpose other
than that of any other special or general law in-
corporating a religious society or sect or church,
that is, "to give an organization for public wor-
ship legal rights, and to impose on it legal obli-
gations as a corporate body" (Van Buren v. Re-
formed Church of Gansevoort, 62 Barb. 495, 497;
Petty v. Tooker, 21 N. Y. 267, 271). Incorporation
of a church is the method by which the municipal
law recognizes a church's present existence. Obvi-
ously, such a statute cannot be a device for trans-
ferring property from one faction to another, or
for subjecting centrally organized churches to the
control of seceding groups. Neither of those two
general statements will be contradicted, and yet
we are told that the passage by the New York Leg-
islature, in 1945, of article 5-C, and its amendment
in 1948, had the precise and intended effect of free-
ing the whole Russian Orthodox religious com-
munity in America from its traditional submission
to its supreme hierarchical head, of outlawing in
New York so much of that community as remained
submissive to the Patriarch, of putting the whole
group and all its properties under the control of
the new schismatic "Russian Church in America",
and, specifically, of mandating the ouster of the
patriarchically appointed archbishop and the sub-
stitution of a rival claimant, not so appointed. We
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
110
confidently assert that there is nothing in the'I stat-
ute itself to suggest such a legislative coup,', that
there is much to show that such was not the legis-
lative purpose, and that the statute, if so intended
or so construed, is plainly unconstitutional. ,
The first section (105) in article 5-C is headed
"Definitions". It is not in form or in meaning a
preamble or legislative finding of fact. It defines
two terms used elsewhere in the article : "Russian
Church in America" and "Russian Orthodox
church". The long, one-sentence definition of the
first of those terms says that, as used in the article,
it means those churches, cathedrals, parishes, etc.,
which were known as the Russian American Mis-
sion of the Russian Orthodox Church from 1793
to 1870, then known as the Diocese of Alaska, etc.,
from 1870 to 1904, then as the Diocese of North
America and the Aleutian Islands from 1904 to
1924, and which have been known as the Russian
Orthodox Greek Church of North America since
1924, and which were subject to the administra-
tive jurisdiction of the Most Sacred Governing
Synod in Moscow until 1917, later the "Patri-
archate of Moscow", but which "now constitute
an administratively autonomous metropolitan dis-
trict created pursuant to resolutions adopted at
a general convention (sobor) of said district held
at Detroit, Michigan, on or about or between April
second to fourth, nineteen hundred twenty-four."
A "definition" of a term is a precise statement of
its meaning. Nothing could be more precise
than the statement (above summarized) which the
Legislature thus gave us of what the Legislature
meant by the use, in article 5-C, of the term
"Russian Church in America". The definition
describes, by reciting its history, the particular
'9 group" of churches intended to be affected by
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
' 111
the article. So read, the definition cannot possibly
mean anything but this : that the "group" of
churches or parishes thus recognized by the Legis-
lature under the name "Russian Church in
America", were those particular churches and
parishes which were formerly part of the unified
body called at successive times first the "Russian
American Mission", then called the "Diocese of
Alaska and the Aleutian Islands", then styled
the "Diocese of North America and the Aleutian
Islands" and which have been called the "Russian
Orthodox Greek Catholic Church of North Amer-
ica " since 1924-in other words, the secessionists.
To make that totally clear, the Legislature added
to its "definition" a statement that it meant those
churches, cathedrals or parishes which, though
formerly subject to the Moscow Patriarch, had
created themselves into an autonomous metropoli-
tan district (or diocese) in April, 1924. On the
trial, the witnesses agreed that not all the Amer-
ican parishes of the Russian Orthodox Church
have gone over to the new "American" church.
The definition describes those who did so cross
over. The second "definition" in section 105 (of
"Russian Orthodox church") says that term
means a church, cathedral, etc., founded and estab-
lished with the purpose and intent of adhering to
the new metropolitan district.
The next section (106) of article 5-C sets forth
the formalities for incorporation of a "Russian
Orthodox church", as defined in section 105.
Section 107, as amended in 1948, prescribes the
method of government, by the new "Russian
Church in America" of "every Russian Orthodox
church in this state", whether incorporated before
or after the creation of the new "autonomous
metropolitan district". Appellant seizes upon
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
112
the words "every Russian Orthodox church in
this state" as meaning, literally, every Russian
Orthodox parish, church or cathedral, whether or
not it has seceded, and whether or not it desires
to retain its traditional ties with the Patriarch.
Of course, the words must be limited as defined in
section 105, which says precisely what they are to
mean, when "used anywhere in this article
Section 105, headed "Reincorporation of exist-
ing corporations" authorizes the reincorporation
" under the provisions of this article", of any
"heretofore incorporated Russian Orthodox
church". Such a provision would be useless and
meaningless if the Legislature had, by the previ-
ous sections of the article, put every Russian
Orthodox church and parish, automatically, into
the new, dissident, "Russian Church in America".
Indeed, if so strange and ruthless a plan had been
intended by the Legislature, section 105 itself
("Definitions") would have-been meaningless and
unnecessary since, with all included, there would
be no need for any definition or limitation.
Article 5-C, we think, is so plain and clear as
not to need or permit any construction beyond the
patent meaning of its simple words (Matter of
Rathscheck, 300 N. Y. 346, 350). But if construc-
tion were permissible, every known canon of con-
struction would lead to the same result: that the
Legislature could not have intended this as a
statute of outlawry, ouster, or disestablishment.
Words in a statute are to receive their natural and
obvious meaning; the: general purpose and spirit
of the law is to be kept in mind; objectionable
consequences, injustice and unreasonableness are
to be avoided; acts will not be so construed as to
accuse the Legislature of a purpose to do harm
(see McKinney's Cons. Laws of N. Y., Book 1,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
113
Statutes [1942 ed.], ??94, 96, 141, 143, 146, 148,
151, and cases cited for these propositions). A
bad result suggests a wrong construction (People
ex rel. Beaman v. Feitner, 168 N. Y. 360, 366).
We find another aid to construction in the very
practical idea that the busy New York Legisla-
ture which enacted over 1,200 laws in 1945, and
which had no committee reports or debates as to
article 5-C, was entitled to believe that this law
meant what it said, without hidden purposes.
And one of the most urgent of all the canons of
construction is this one: that a statute must be
construed, when possible, "in manner which
would remove doubt of its constitutionality, and
possible danger that it might be used to restrain
or burden freedom of worship or freedom of
speech and press" (People v. Barber, 289 N. Y.
378, 385). Put another way, the rule is that the
construction, if at all possible, must be such as
not only to avoid unconstitutionality but to avoid
grave doubts thereof (Matter of Cooper, 22 N. Y.
67, 87, 88; Kovacs v. Cooper, 336 U. S. 77, 85;
Tauza v. Susquehanna Coal Co., 220 N. Y. 259,
267; People v. Realmato, 294 N. Y. 45, 50; United
States v. Jin Fuey Moy, 241 U. S. 394, 401). How
can there be any dispute but that this article 5-C,
if read so as to take this archbishopric from the
control of the central church and give it to appell-
ant's group, is unconstitutional? Watson v. Jones,
(supra), does not use the precise word "unconsti-
tutional" but the opinion, contrasting American
with old world systems (see p. 728 et seq. of 13
Wall. [U. S.1), says that "In this country the
full and free right to entertain any religious
belief, to practice any religious principle" finds
expression in the American rule of law that the
determinations of the tribunals and judicatories
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
114
of a centrally organized church are absolutely
binding on the civil power. The modern Supreme
Court in Everson v1 Board of Educ. (330 U. S. 1,
1.3), has cited Watson v. Jones (supra), as auth-
ority for the proposition that the First Amend-
ment provides "protection against governmental
intrusion on religious liberty" through statutes.
It is no answer to this charge of unconstitution-
ality that there is here in dispute a "property
right" only as to the use of a building. ' C * * *
when rights of property are dependent upon the
questions of doctrine, discipline or church govern-
ment, the civil court will treat the determination
made in the highest tribunal within the church
as controlling" (Baxter v. McDonnell, 155 N. Y.
83, 101, supra, citing Watson v. Jones, supra.;
and Connitt v. Reformed Prot. Dutch Church of
New Prospect, supra; see Gonzalez v. Archbishop
of Manila, 280 U. S. 1, 16).
We pause to remark on the notable similarity
between the present case and Watson v. Jones
(supra). A controversy over slavery split the
Presbyterian Church in Kentucky in the 1860's;
dissension over communism ideologies and Soviet
controls played their part in the internecine war-
fare which broke out among the American members
of the Russian Orthodox Church. A faction with-
drew from the central control in the Presbyterian
Church; plaintiff's faction here divorced them-
selves from their supreme hierarch. In Watson
v. Jones, the Supreme Court, holding the Presby-
terian controversy to be "a case of division or
schism in a church" (p. 717), as is surely true
of our case, made the classic statement of law
which runs from page 722 to the end of the long
opinion. The holding as between the dissenters
and the central organization was summarized thus :
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
"They [the schismatics] now deny its authority,
denounce its action, and refuse to abide by its
judgments. They have. first erected themselves
into a new organization, and have since joined
themselves to another totally different, if not
hostile, to the one to which they belonged when the
difficulty first began. Under any of the decisions
which we have examined, the appellants, in their
present position, have no right to the property,
or to the use of it, which is the subject of this
suit" (p. 734).
Going back to the statute (art. 5-C) and its
supposed effect here, we have, fortunately, the
strongest kind of proof from the Religious Cor-
porations Law itself that the Legislature never
intended for article 5-C the meaning and result
now ascribed to it. In 1943 (ch. 145 of that year)
the Legislature, two years before it set up article
5-C, had enacted a new article XV of the Religious
Corporations Law and had, concurrently, amended
subdivision 3 of section 15 of the Religious Cor-
porations Law. That 1943 legislation described
and recognized a "federation" of the "four pri-
mary Orthodox Greek Catholic jurisdictions in
America ", being the churches, congregations, etc.,
recognized by the "apostolic historic Orthodox
Patriarchates of Constantinople, Antioch, Moscow
and Serbia (Jugoslavia) ". Among other things,
that 1943 law described the processes whereby
new congregations adhering to the four historic
patriarchates could be newly incorporated or re-
incorporated as member churches of the federa-
tion. The significance for us is this: as late as
1943, the Legislature was thus legislating as to
those churches which were under the government
of the Moscow Patriarch. The Governor of New
York, after signing the bill, made it clear that he
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
so understood its import. In a speech at Buffalo
(see Public Papers of the Governor, 1943, p. 550)
Governor Dewey said: "For more than 180 years
members of the Greek Church have been on what
is now American soil. We find in the records that
as long ago as 1763 a native of the Aleutian Islands
was converted by a devout and hardy missionary
from Russia. Nineteen years later the Holy
Synod sent a mission of eight monks to Alaska
and in 1794 they established missionary head-
quarters on the Kodiak Island. Three years later
the hierarchy of the Greek Church consecrated a
Bishop of Alaska, but he perished at sea before
he could ever reach his diocese. The living suc-
cessor of the reverend prelates who succeeded
him is The Most Reverend Metropolitan Benjamin
of New York. It is an interesting historic fact,
particularly in these days, that his full title is
Metropolitan of the Archdiocese of the Aleutian
Islands and North America.
The Most Reverend Metropolitan Benjamin
whom the Governor thus saluted as the successor
to the historic line of Orthodox prelates in
America was our defendant Benjamin.
Thus we see that in 1943, by article XV and the
amendment to section 15, the Legislature dealt
with those Orthodox churches which remained
loyal to the Patriarch and in 1945 and 1948,
through article 5-C, gave its attention and recog-
nition to the new, nonconformist "American
Church". There is no slighest sign that the Legis-
lature intended the later statutes to repeal the
earlier. We should not strain to discover a re-
peal by implication but must read these statutes
as harmonious parts of a whole and. assume that
the Legislature in 1945 knew what it had done in
1943 (Matter of Cooper, 22 N. Y. 67, 88 supra;
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Chase v. Lord, 77 N. Y. 1, 18; Matter of Tiffany,
179 N. Y. 455, 457; Matter of Timmis, 200 N. Y.
177, 181; Betz v. Horr, 276 N. Y. 83, 88; Morris
Plan Ind. Bank of N. Y. v. Gunning, 295 N. Y. 324,
331). "The intent and purpose of the legislative
commands must be found from the statutes relat-
ing to the, same general subject-matter taken as
a whole" (Betz v. Horr, supra, p. 88). 1 'If by any
fair construction, whether strict or liberal, a
reasonable field of operation can be found for
both acts, that construction should be adopted.
In other words, if the old and the new law, by
any reasonable interpretation, can stand together,
there is no repeal by implication" (Matter of
Tiffany, supra, p. 457). The Legislature in 1943
dealt with the patriarchal church, in 1945 with the
American church, and there is no repugnance,
inconsistency or overlapping of the two sets of
statutes.
A final comment :
In the long run, communist repression and abuse
of religion will make religion stronger, for "the
blood of the martyrs is the seed of the Church".
And so with government interferences with
churches in our country. But with us the loser
will be a traditional principle of American govern-
ment : that the inner affairs of religious bodies
are no concern of the State.
The judgment should be affirmed, with costs.
LEwis, DYE and FROESSEL, JJ., concur in opinion
by CONWAY, J.; LEwIS, CONWAY and DYE, J3.,
concur in separate opinion by FROESSEL, J.; DEs-
MOND, J., dissents in opinion in which LouauRni,
Ch. J., and FuLD, J., concur.
Judgments reversed, etc. [See 302 N. Y. 689.]
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
118
344 United States 94
KEDROFF et al. V. SAINT NICHOLAS CATHEDRAL OF
THE RUSSIAN ORTHODOX CHURCH IN
NORTH AMERICA.
APPEAL FROM THE COURT OF APPEALS
OF NEW YORK.
No. 3. Argued February 1, 1952.--Reargued
October 14,1952.-Decided November 24, 1952.
In an action brought in a state court by appel-
lee, a New York corporation, to determine the
right to the use and occupancy of a church in New
York City, the trial court gave judgment in favor
of the defendants, appellants here. 192 Misc. 327,
77 N. Y. S. 2d 333. The Appellate Division of the
State Supreme Court affirmed. 276 App. Div. 309,
94 N. Y. S. 2d 453. The Court of Appeals reversed.
302 N. Y. 1, 33, 961 N. E. 2d 56, 74. On appeal to
this Court, reversed and remanded, p. 121.
PHILIP ADLER argued the cause and filed the
briefs for appellants.
RALPH MONTGOMERY ARKUSH argued the cause
and filed the brief for appellee.
Mr. JUSTICE REED delivered the opinion of the
Court.
The right to the use and occupancy of a church
in the city of New York is in dispute.
The right to such use is claimed by appellee, a
corporation created in 1925 by an act of the Legis-
lature of New York, Laws of New York 1925,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
c. 463, for the purpose of acquiring a cathedral
for the Russian Orthodox Church in North Amer-
ica as a central place of worship and residence of
the ruling archbishop "in accordance with the
doctrine, discipline and worship of the Holy Apos-
tolic Catholic Church of Eastern Confession as
taught by the holy scriptures, holy tradition, seven
oecumenical councils and holy fathers of that
church. "
The corporate right is sought to be enforced so
that the head of the American churches, religiously
affiliated with the Russian Orthodox Church, may
occupy the Cathedral. At the present time that
head is the Metropolitan of all America and Can-
ada, the Archbishop of New York, Leonty, who
like his predecessors was elected to his ecclesiasti-
cal office by a sobor of the American churches.'
1 A sobor is a convention of bishops, clergymen and
laymen with superior powers, with the assistance of
which the church officials rule their dioceses or districts.
There is no problem of title. It is in the appellee
corporation. The issue is the right of use. St. Nicholas
Cathedral v. Kedroff, 302 N. Y. 1, 20, 96 N. E. 2d 56,
66-67.
The deed to the Cathedral Corporation required the
grantee to hold the property in accordance with the
terms of the Act of 1925, set out at the opening of this
opinion. As said by the Court of Appeals, 302 N. Y.,
at 20, 96 N. E. 2d, at 66:
"Plaintiff does not dispute this trust theory, but on the
contrary relies upon it. Plaintiff has endeavored to
prove that the beneficial use of the property today right-
fully belongs to the Russian church in America (Religious
Corporations Law, ?105) which was forced to declare
its administrative autonomy at the Detroit sobor of 1924
in order to preserve and adhere to those principles and
practices fundamental to the Russian Orthodox faith,
free from the influence of an atheistic and antireligious
foreign civil government. "
See also Religious Corporations Law, ?5, 50 McKin-
ney's N. Y. Laws ?5.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
That claimed right of the corporation to use and
occupancy for the archbishop chosen by the Amer-
ican churches is opposed by appellants who are in
possession. Benjamin Fedchenkoff bases his right
on an appointment in 1934 by the Supreme Church
Authority of the Russian Orthodox Church, to wit,
the Patriarch locum tenens of Moscow and all
Russia and its Holy Synod, as Archbishop of the
Archdiocese of North America and the Aleutian
Islands. The other defendant-appellant is a priest
of the Russian Orthodox Church, also acknowl-
edging the spiritual and administrative control of
the Moscow hierarchy.
Determination of the right to use and occupy
>aint Nicholas depends upon whether the appoint-
ment of Benjamin by the Patriarch or the election
of the Archbishop for North America by the con-
vention of the American churches validly selects
the ruling hierarch for the American churches.
The Court of Appeals of New York, reversing the
lower court, determined that the prelate appointed
by the Moscow ecclesiastical authorities was not
entitled to the Cathedral and directed the entry of
a judgment that appellee corporation be reinvested
with the possession and administration of the
temporalities of St. Nicholas Cathedral. St.
Nicholas Cathedral v. Kedroff, 302 N. Y. 1, 33,
96 N. E. 2d 56, 74. This determination was made
on the authority of Article 5-C of the Religious
Corporations Law of New York, 302 N. Y., at 24
et seq., 96 N. E. 2d, at 68 et seq., against appel-
lants' contention that this New York statute, as
construed, violated the Fourteenth Amendment to
the Constitution of the United States.
Because of the constitutional questions thus gen-
erally involved, we noted probable jurisdiction,
and,, after argument and submission of the case
last term, ordered reargument and requested
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
counsel to include a discussion of whether the
judgment might be sustained on state grounds.
343 U. S. 972. Both parties concluded that it could
not, and the unequivocal remittitur of the New
York Court of Appeals, 302 N. Y. 689, 98 N. E.
2d 485, specifically stating the constitutionality
of the statute as the necessary ground for decision,
compels this view and precludes any doubt as to
the propriety of our determination of the consti-
tutional issue on the merits. Grayson v. Harris,
267 U. S. 352; Indiana ex rel. Anderson v. Brand,
303 U. S. 95. The case now has been reargued and
submitted.
Article 5-C was added to the Religious Corpo-
rations Law of New York in 1945 and provided
both for the incorporation and administration of
Russian Orthodox churches. Clarifying amend-
ments were added in 1948. The purpose of the
article was to bring all the New York churches,
formerly subject to the administrative jurisdic-
tion of the Most Sacred Governing Synod in
Moscow or the Patriarch of Moscow, into an
administratively autonomous metropolitan dis-
trict. That district was North American in area,
created pursuant to resolutions adopted at a sobor
held at Detroit in 1924.2 This declared autonomy
2 50 McKinney's N. Y. Laws ?105:
"The `Russian Church in America', as that term is
used anywhere in this article, refers to that group of
churches, cathedrals, chapels, congregations, societies,
parishes, committees and other religious organizations
of the Eastern Confession (Eastern Orthodox or Greek
Catholic Church) which were known as (a) Russian
American Mission of the Russian Orthodox Church from
in or about seventeen hundred ninety-three to in or
about eighteen hundred seventy ; (b) Diocese of Alaska
and the Aleutian Islands of the Russian Orthodox Church
from in or about eighteen hundred seventy to in or about
nineteen hundred four; (c) Diocese of North America
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
122
was made effective by a further legislative require-
ment that all the churches formerly adminis-
tratively subject to the Moscow synod and patri-
archate should for the future be governed, by the
ecclesiastical body and hierarchy of the American
metropolitan district.3 The foregoing analysis
and the Aleutian Islands (or Alaska) of the Russian
Orthodox Church from in or about nineteen hundred
four to in or about nineteen hundred twenty-four; and
i d) Russian Orthodox Greek Catholic Church of North
America since in or about nineteen hundred twenty-four ;
and were subject to the administrative jurisdiction of
the Most Sacred Governing Synod in Moscow until in or
about nineteen hundred seventeen, later the Patriarchate
of Moscow, but now constitute an administratively auton-
omous metropolitan district created pursuant to, resolu-
tions adopted at a general convention (sobor) of said
district held at Detroit, Michigan, on or about or between
April second to fourth, nineteen hundred twenty-four.
"A `Russian Orthodox church', as that term is used
anywhere in this article, is a church, cathedral, chap [t] el,
congregation, society, parish, committee or other religious
organization founded and established for the purpose
and with the intent of adhering to, and being subject to
the administrative jurisdiction of said mission, diocese or
autonomous metropolitan district hereinabove defined. as
the Russian Church in America."
3Id., ?107:
"1. Every Russian Orthodox church in this state,
whether incorporated before or after the creation of said
autonomous metropolitan district, and whether' incor-
porated or reincorporated pursuant to this article or any
other article of the religious corporations law, or any
general or private law, shall recognize and be and remain
subject to the jurisdiction and authority of the general
convention (sobor), metropolitan archbishop or other
primate or hierarch, the council of bishops, the metro-
politan council and other governing bodies and authori-
ties of the Russian Church in America, pursuant to the
statutes for the government thereof adopted at a general
convention (sobor) held in the city of New York on or
about or between October fifth to eighth, nineteen hun-
dred thirty-seven, and any amendments thereto and any
other statutes or rules heretofore or hereafter adopted
by a general convention (sobor) of the Russian Church
Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
 Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
follows the interpretation of this article by the
Court of Appeals of New York, an interpretation
binding upon us.'
in America and shall in all other respects conform to,
maintain and follow the faith, doctrine, ritual, com-
munion, discipline, canon law, traditions and usages of
the Eastern Confession (Eastern Orthodox or Greek
Catholic Church).
"3. The trustees of every Russian Orthodox church
shall have the custody and control of all temporalities
and property, real and personal, belonging to such church
and of the revenues therefrom and shall administer the
same in accordance with the by-laws of such church, the
normal statutes for parishes of the Russian Church in
America approved at a general convention (sobor)
thereof held at Cleveland, Ohio, on or about or between
November twentieth to twenty-third, nineteen hundred
thirty-four, and any amendments thereto and all other
rules, statutes, regulations and usages of the Russian
Church in America. "
4 Hebert v. Louisiana, 272 U. S. 312, 317; Winters v.
New York,.333 U. S. 507, 514.
The court expressed its conclusion in reversing the
judgment of the Appellate Division of the Supreme
Court, St. Nicholas Cathedral v. Kedroff, 276 App. Div.
309, 94 N. Y. S. 2d 453, which had affirmed the Trial
Term. 192 Misc. 327, 77 N. Y. S. 2d 333. The Court of
Appeals held :
"The only construction which gives meaning to all the
language in sections 105 and 107 is that the statute was
intended to apply to those Russian Orthodox churches
founded and established before 1924 for the purpose of
adhering and being subject to the North American Mis-
sion or North American Diocese, and to those Russian
Orthodox churches founded and established after 1924
for the purpose of adhering and being subject to the
autonomous metropolitan district. The majority in the
Appellate Division further intimated that to read the
statute literally would result in an interference in eccle-
siastical concerns not within the competency of the
Legislature. The latter suggestion is the only one which
requires discussion, for, as already indicated, the intent
of the Legislature (as distinguished from its competency)
is unmistakable." 302 N. Y., at 29, 96 N. E. 2d, at 71.
Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
124
Article 5-C is challenged as invalid under the
constitutional prohibition against interference
with the exercise of religion.' The appellants'
contention, of course, is based on the theory that
the principles of the First Amendment are made
applicable to the states by the Fourteenth.' See
Stokes, Church and State in the United States
(1950), vol. 1, c. VIII.
The Russian Orthodox Church is an autocepha-
lous member of the Eastern Orthodox Greek
Catholic Church. It sprang from the Church of
Constantinople in the Tenth Century. The' schism
of 1054 A. D. split the Universal Church into those
of the East and the West. Gradually self-
govern-ment was assumed by the Russian Church until in
the Sixteenth Century its autonomy was, recog-
nized and a Patriarch of Moscow appeared.
Fortescue, Orthodox Eastern Church, C. V. For
the next one hundred years the development of the
church kept pace with the growth of power of the
Czars but it increasingly became a part of the civil
government-a state church. Throughout that
period it also remained an hierarchical church
with a Patriarch at its head, governed by the con-
ventions or sobors called by him. However, from
the time of Peter the Great until 1917 no sobor
was held. No patriarch ruled or was chosen. Dur-
ing that time the church was governed by a Holy
Synod, a group of ecclesiastics with a Chief Pro-
First Amendment to the Constitution :
" Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof ;
9k iN 12
Hamilton v. Regents, 293 U. S. 245, 262; Cantwell v.
Connecticut, 310 U. S. 296, 303; Everson v. Board of
Education, 330 U. S. 1, 14-15; Illinois ex rel. McCollum
v. Board of Education, 333 U. S. 203, 210-211; Zorach v.
Clauson, 343 U. S. 306, 310.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
125
curator representative of the government as a
member.
Late in the Eighteenth Century the Russian
Church entered the missionary field in the Aleutian
Islands and Alaska. From there churches spread
slowly down the Pacific Coast and later, with the
Slavic immigration, to our eastern cities, particu-
larly to Detroit, Cleveland, Chicago, Pittsburgh
and New York. The character of the administra-
tive unit changed with the years as is indicated by
the changes in its name. See note 2. In 1904 when
a diocese of North America was created its first
archbishop, Tikhon, shortly thereafter established
himself in his seat at Saint Nicholas Cathedral.
His appointment came from the Holy Synod of
Russia as did those of his successors in order
Platon and Evdokim. Under those appointments
the successive archbishops occupied the Cathedral
and residence of Saint Nicholas under the admin-
istrative authority of the Holy Synod.
In 1917 Archbishop Evdokim returned to Russia
permanently. Early that year an All Russian
Sobor was held, the first since Peter the Great.
It occurred during the interlude of political free-
dom following the fall of the Czar. A patriarch
was elected and installed-Tikhon who had been
the first American Archbishop. Uncertainties as
to the succession to and administration of the
American archbishopric made their appearance
following this sobor and were largely induced by
the almost contemporaneous political disturbances
which culminated swiftly in the Bolshevik Revolu-
tion of 1917. The Russian Orthodox Church was
drawn into this maelstrom. After a few years the
Patriarch was imprisoned. There were sugges-
tions of his counter-revolutionary activity. Church
power was transferred, partly through a sobor
considered by many as non-canonical, to a Supreme
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
126
Church Council. The declared reforms were said
to have resulted in a "Living Church" or some-
times in a "Renovated Church." Circumstances
and pressures changed. Patriarch Tikhon was
released from prison and died in 1925. He named
three bishops as locum tenens for the patriarchal
throne. It was one of these, Sergius, who in 1933
appointed the appellant Benjamin as Archbishop.
The Church was registered as a religious organ-
ization under Soviet law in 1927. Thereafter the
Russian Church and the Russian State approached
if not a reconciliation at least an adjustment which
eventuated by 1943 in the election of Sergius, one
of the bishops named as locum tenens by Tikhon,
to the Patriarchate. The Living or Renovated
Church, whether deemed a reformed, a schismatic
or a new church, apparently withered away. After
Sergius' death a new Patriarch of the Russian
Orthodox Church, Alegi, was chosen Patriarch in
1945 at Moscow at a sobor recognized by all par-
ties to this litigation as a true sober held in accord-
ance with the church canons.'
The Russian upheaval caused repercussions in
the North American Diocese. That Diocese at the
time of the Soviet Revolution recognized the
spiritual and administrative control of Moscow.
White Russians, both lay and clerical,' found
asylum in America from the revolutionary con-
flicts, strengthening the feeling of abhorrence of
the secular attitude of the new Russian Govern-
ment. The church members already here, immi-
7 Fortescue, supra (1916) ; Brian-Chaninov, The 'Rus-
sian Church (1931), c. VIII; Zernov, The Russians and
Their Church (1945) ; French, The Eastern Orthodox
Church (1951), c. VII; Danzas, The Russian Church
(1936) ; Anderson, People, Church and State in Modern
Russia (1944), pp. 121-140; Bolshakoff, The Foreign
Missions of the Russian Orthodox Church (1943), c. IV.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
127
grants and native-born, while habituated to look
to Moscow for religious direction, were accustomed
to our theory of separation between church and
state. The Russian turmoil, the restraints on
religious activities and the evolution of a new
ecclesiastical hierarchy in the form of the "Living
Church," deemed noncanonical or schismatic by
most churchmen, made very difficult Russian ad-
ministration of the American diocese. Further-
more, Patriarch Tikhon, on November 20, 1920,
issued Decision No. 362 relating to church admin-
istration for troublesome times. This granted a
large measure of autonomy, when the Russian ruI-
ing authority was unable to function, subject to
`confirmation later to the Central Church Author-
ity when it is re-established." Naturally the grow-
ing number of American-born members of the
Russian Church did not cling to a hierachy iden-
tified with their country of remote origin with the
same national feeling that moved their immigrant
ancestors. These facts and forces generated in
America a separatist movement.
That movement brought about the arrange-
ments at the Detroit Sobor of 1924 for a tempo-
rary American administration of the church on
account of the disturbances in Russia.8 This was
8 The attitude of the Russian Church in America will
be made sufficiently plain by these extracts from their
records of action taken at the Detroit Sobor, 1924:
"Point 1. Temporarily, until the convocation of the
All Russian Sobor further indicated in Point 5, to declare
the Russian Orthodox Diocese in America a self-governed
Church so that it be governed by its own elected Arch-
bishop by means of a Sobor of Bishops, a Council com-
posed of those elected from the clergy and laity, and
periodic Sob ors of the entire American Church.
"Point 5. To leave the final regulation of questions
arising from the relationship of the Russian and the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP6O-OO442ROO0100110003-9
128
followed by, the declarations of autonomy of the
successive sobors since that date, a spate of liti-
gation concerning control of the various churches
and occupancy of ecclesiastical positions,' the
New York legislation (known as Article 5-C, notes
2 ,and 3, supra), and this controversy.
Delegates from ' the North American -Diocese.
intended to be represented at an admittedly
canonical Sobor of the Russian Orthodox Church
held in 1945 at Moscow. They did not arrive in
time. on account- of delays, responsibility . for
which has not been fixed. The following stipula-
tion appears as to their later actions while at
Moscow:
"It is stipulated that Bishop Alexi and
Father Dzvonchik, representing the local
group of American Churches under Bishop
Theophilus, appeared before the Patriarch
and the members of his Synod in Moscow,
presented a written report on the condition of
the American Church, with a request for an-
American Churches to a future Sob or of the Russian
Orthodox Church which will be legally convoked, legally
elected, will sit with the participation of representatives
of the American Church under conditions of political
freedom, guaranteeing the fullness and authority of its
decisions for the entire Church, and will be recognized
by the entire Oecumenical Orthodox Church as al true
Sobor of the Russian Orthodox Church."
9 Nemolovsky v. Rykhlof, 187 App. Div. 290, 175
N. Y. S. 617; Kedrovsky v. Archbishop and Consitory,
195 App. Div. 127, 186 N. Y. S..346 ; Kedrovsky v. Roj-
desvensky, 214 App. Div. 483, 212 N. Y. S. 273; id, 242
N. Y. 547, 152 N. E. 421; Kedrovsky v. Archbishop and
Consistory, 218 App. Div. 121, 124, 217 N. Y. S. , 873 ;
875; id., 220 App. Div. 750, 222 N. Y. S. 831; id. 249
N. Y. 75, 516, 162 N. E. 588, 164 N. E. 566; Nikul$ikoff
v. Archbishop and Consistory, 142 Misc. 894, 255 N. Y. S.
653; Waipa v. Kushwara, 259 App. Div. 843, 20 N.Y: S.
2d 174; id., 283 N. Y. 780, 28 N. E. 2d 417.
Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
129
tonomy and a few days later received from
the Patriarch the Ukase..:."
There came to the Russian Church in America
this Ukase of the Moscow Patriarchy of February
14 or 16, 1945, covering Moscow's requirements
for reunion of the American Orthodox Church
with the Russian. It required for reunion that the
Russian Church in America hold promptly an all
American Orthodox Church Sobor"; that it ex-
press the decision of the dioceses to reunite with
the Russian Mother Church, declare the agree-
ment of the American Orthodox Church to abstain
"from political activities against the U. S. S. R."
and so direct its parishes, and elect a Metropolitan
subject to confirmation by the Moscow Patriarchy.
The decree said, "In view of the distance of the
American Metropolitan District from the Russian
Mother Church the Metropolitan-Exarch
. . . may be given some extended powers by the
Moscow Patriarchy. ." -
The American congregations, speaking through
their Cleveland Sobor of 1946 refused the prof-
fered arrangement and resolved in part:
That any administrative recognition of the
Synod of the Russian Orthodox Church
Abroad is hereby terminated, retaining, how-
ever, our spiritual and brotherly relations
with all parts of the Russian Orthodox
Church abroad....
This ended the efforts to compose the differences
between the Mother Church and its American off-
spring, and. this litigation followed. We under-
stand the above factual summary corresponds
substantially with the factual basis for determina-
tion 'formulated by the Court of Appeals of New
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
130
York. From those circumstances it seems clear
that the Russion Orthodox Church was, until the
Russian Revolution, an hierarchical church with
unquestioned paramount jurisdiction in the gov-
erning body in Russia over the American MVIetro-
politanate. Nothing indicates that either the
Sacred Synod or the succeeding Patriarchs re-
linquished that authority or recognized the auton-
omy of the American Church. The Court of
Appeals decision proceeds, we understand, upon
the same assumption. 302 N. Y., at 5, 23, 24, 96
N. E. 2d, at 57, 68, 69. That court did consider
"whether there exists in Moscow at the present
time a true central organization of the Russian
Orthodox Church capable of functioning as the
head of a free international religious body.'" It
concluded that this aspect of the controversy had
not been sufficiently' developed to justify a'judg-
ment upon that ground. 302 N. Y., at 22-24, 96
N. E.. 2d, at 67-69.
The Religious Corporations Law.-The New
York Court of Appeals depended for its judgment,
refusing recognition to Archbishop Benjamin, the
appointee of the Moscow Hierarchy of the Ru.s-
sion Orthodox Church, upon Article 5-C of the
Religious Corporations Law, quoted and analyzed
at notes 2 and 3, supra.1? Certainly a legislature
10 The Court said, 302 N. Y. 1, 96 N. E. 2d 56:
"The Legislature has made a determination that the
`Russian Church in America' was the one which, to use
our words in 249 New York at pages 77-78, was the
trustee which `may be relied upon to carry out', more
effectively and faithfully the purposes of this religious
trust (Carrier v. Carrier, 226 N. Y. 114) ' by reason of
the changed situation of the patriarchate in Russia,"
302 N. Y., at 30, 96 N. E. 2d, at 72.
"`The courts have always recognized that it is the pro-
vince of the Legislature to make the underlying findings
of fact which give meaning and substance to its ultimate
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
is free to act upon such information as it may
have as to the necessity for legislation. But an
enactment by a legislature cannot validate action
which the Constitution prohibits, and we think
that the statute here in question passes the con-
stitutional limits. We conclude that Article 5-C
undertook by its terms to transfer the control of
the New York churches of the Russian Orthodox
directives. The courts have traditionally refused to con-
sider the wisdom or technical validity of such findings of
fact, if there be some reasonable basis upon which they
may rest. " 302 N. Y., at 31, 96 N. E. 2d, at 72-73.
"The Legislature of the State of New York, like the
Congress, must be deemed to have investigated the whole
problem carefully before it acted. The Legislature knew
that the central authorities of the Russian Orthodox
Church in Russia had been suppressed after the 1917
revolution, and that the patriarchate was later resur-
rected by the Russian Government. The Legislature,
like Congress, knew the character and method of opera-
tion of international communism and the Soviet attitude
toward things religious. The Legislature was aware of
the contemporary views of qualified observers who have
visited Russia and who have had an opportunity to ob-
serve the present status of the patriarchate in the Soviet
system. The Legislature realized that the North Ameri-
can church, in order to be free of Soviet interference
in its affairs, had declared its temporary administrative
autonomy in 1924, pursuant to the ukase of 1920, while
retaining full spiritual communion with the patriarchate,
and that there was a real danger that those properties
and temporalities long enjoyed and used by the Russian
Orthodox Church worshippers in this State would be
taken from them by the representatives of the patri-
archate. On the basis of these facts, and the facts stated
(supra) and no doubt other facts we know not of, our
Legislature concluded that the Moscow Patriarchate was
no longer capable of functioning as a true religious body,
but had become a tool of the Soviet Government pri-
marily designed to implement its foreign policy. Whether
we, as judges, would have reached the same conclusion
is immaterial. It is sufficient that the Legislature reached
it, after full consideration of all the facts." 302 N. Y.,
at 32-33, 96 N. E. 2d, at 73-74.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
132
religion from the central governing hierarchy of
the Russian Orthodox Church, the Patriarch of
Moscow and . the Holy Synod, to the governing
authorities of the Russian Church in America, a
church organization limited to the diocese of
North America and the Aleutian Islands. This
transfer takes place by virtue of the statute.
Such a law violates the. Fourteenth Amendment.
It prohibits in this country the free exercise of
religion. Legislation that regulates church ad-
ministration, the operation of the churches, the
appointment of clergy, by requiring conformity
to church statutes "adopted at a general conven-
tion (sobor) held in the City. of New York on or,
about or between October fifth to eighth, nineteen
hundred thirty-seven, and any amendments there-
to," note 3, supra, prohibits the free exercise of
religion. Although this statute requires the' New
York churches to "in all other respects conform
to maintain and follow the faith, doctrine,
ritual, communion, discipline, canon law, tradi-
tions and usages of the Eastern Confession
(Eastern Orthodox or Greek Catholic Church),"
their conformity is by legislative fiat and subject
to legislative will. Should the state assert power
to change the statute requiring conformity to
ancient faith and doctrine to one establishing a
different doctrine, the invalidity would be un-
mistakable.
Although ?5 of the Religious Corporations
Law'1 had long controlled religious corporations,
the Court of Appeals held that its rule was not
T "The trustees of every religious corporation: shall
have the custody and control of all the temporalities and
property, real and personal, belonging to the corporation
and of the revenues therefrom, and shall administer the
same in accordance with the discipline, rules and usages
of the corporation and of the ecclesiastical governing
body, if any, to which the corporation is subject, ..."
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
based on any constitutional requirement or pro-
hibition.l2 Since certain events of which the Court
took judicial notice indicated to it that the Rus-
sian Government exercised control over the cen-
tral church authorities and that the American
church acted to protect its pulpits and faith from
such influences, the Court of Appeals felt that the
Legislature's reasonable belief in such conditions
justified the State in enacting a law to free the
American group from infiltration of such atheistic
or subversive influences.13
12 302 N. Y., at 30, 96 N. E. 2d, at 72:
"As a broad guide this rule undoubtedly has worked
well, but it is by no means a constitutional doctrine not
subject to change or modification by the same Legis-
lature which announced it, in cases where literal en-
forcement would be unreasonable and opposed to the
public interest. The Legislature, in the exercise of its
extensive and acknowledged power to act for the com-
mon,welfare, may find as a fact that a situation has arisen
of such novelty and uniqueness that existing law is in-
capable of performing its avowed function-the preserva-
tion of religious temporalities for the use of their.original
and accustomed beneficiaries. If the Legislature find as
a fact that, because of drastically changed circumstances,
the accustomed beneficiaries of religious properties are
thus threatened with their loss, and if there be a basis
for such finding, we perceive no constitutional objection
to a legislative attempt to trace and identify, as of today,
the authentic group entitled to the administration of
such properties."
13 302 N. Y., at 13, 96 N. E. 2d, at 62:
"The control of all phases of Russian life by the Govern-
ment was not as apparent in 1924 as it is a quarter of a
century later and on the surface, at least, the case ap-
peared to be a proper one for the application: of the rule
that in an ecclesiastical dispute involving a denomina-
tional church, the decision of the highest church judica-
tories will be accepted as final and conclusive by the
civil courts (Trustees of Presbytery of N. Y. v. West-
minster Presbyt. Church, 222 N. Y. 305, 315; Watson
v. Jones, 13 Wall. [U. S.] 679, 724-727; Religious Cor-
porations Law, ??4, 5)."
we feel we must accept the historical statements
contained in the dissenting opinion of Mr. Justice VAN
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
134
This legislation, Art. 5-C, in the view of the
Court of Appeals, gave the use of the churches to
the Russian Church in America on the theory that
this church would most faithfully carry out the
purposes of the religious trust.14 Thus dangers
of political use of church pulpits would be mini-
mized. Legislative power to punish subversive
action cannot be doubted. If such action should
be actually attempted by a cleric, neither his robe
nor his pulpit would be a defense. But in this
case no problem of punishment for the violation
of law arises. There is no charge of subversive
or hostile action by any ecclesiastic. Here there
is a transfer by statute of control over churches.
This violates our rule of separation between
church and state. That conclusion results from
the purpose, meaning and effect of the New York
legislation stated above, considered in the light
of the history and decisions considered below.
Hierarchical churches may be defined as those
organized as a body with other churches having
similar faith and doctrine with a common ruling
convocation or ecclesiastical head. In Watson v.
Jones, 13 Wall. 679, they are spoken of in like
terms.'-' That opinion has been given con'sidera-
VOORins, below: `.. In recent public pronouncements
the State Department, and our representatives in the
United Nations, have frequenly recognized and de-
nounced the suppression of human rights and basic
liberties in religion as well as in other aspects' of life,
existing in Soviet Russia and in all of its satellite states.
. . . 7 " 302 N. Y., at 23, 96 N. E. 2d, at 68.
14 See note 10, supra.
15 "The third is where the religious congregation or
ecclesiastical body holding the property is but a sub-
ordinate member of some general church organization in
which there are superior ecclesiastical tribunals with a
general and ultimate power of control more or less com-
plete, in some supreme judicatory over the whole mem-
bership of that general organization." 13 Wall. 679,
722-723.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
tion in subsequent church litigation-state and
nationa1.16 The opinion itself, however, did not
turn on either the establishment or the prohibition
of the free exercise of religion. It was a church
controversy in the Third or Walnut Street Pres-
byterian Church of Louisville, Kentucky, arising
out of the slavery conflict and was filled with the
acrimony of that period. It was decided here at
the 1871 Term. "The government of the [Presby-
terian] church is exercised by and through an
ascending series of 'judicatories,' known as
Church Sessions, Presbyteries, Synods, and a
General Assembly." Id., at 681. The opinion of
this Court assumed without question that the
Louisville church, its property and its officers
were originally and up to the beginning of the
disagreements subjected to the operation of the
laws of the General Assembly of the Presbyterian
Church. Id., at 683. The actual possession of the
church property was in trustees; its operation or
use controlled by the Session composed of elders.17
16 Zollmann, American Church Law (1933), c. 9. E. g.,
Shepard v. Barkley, 247 U. S. 1; Barkley v. Hayes, 208
F. 319, 326; McGinnis v. Watson, 41 Pa. 9; Missouri
ex rel. Watson v. Farris, 45 Mo. 183, 197-198; First
English Lutheran Church v. Evangelical Lutheran
Synod, 135 F. 2d 701. Of. Gibson v. Armstrong, 7 Ben.
Monroe (Ky.) 481; German Reformed Church v. Com-
monwealth ex rel. Seibert, 3 Pa. 282.
17 One or two propositions which seem to admit of
no controversy are proper to be noticed in this connec-
tion. 1. Both by the act of the Kentucky legislature
creating the trustees of the church a body corporate,
and by the acknowledged rules of the Presbyterian
Church, the trustees were the mere nominal title-holders
and custodians of the church property, and other trus-
tees were, or could be elected by the congregation, to
supply their places once in every two years. 2. That
in the use of the property for all religious services or
ecclesiastical purposes, the trustees were under the con-
Approved For Release 2000/08/26 : CIA-RDP6O-00442ROO0100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Both were groups elected at intervals by the
members.
In May of 1865 the General Assembly, the high-
est judicatory of the church, made a declaration
of loyalty to the Federal Government denouncing
slavery, and directed that new members with
contrary views should not be received. The Louis-
ville Presbytery, the immediate superior of the
Walnut Street Church, promptly issued a Declara-
tion and Testimony, refusing obedience and call-
ing for resistance to the alleged usurpation of
authority. The Louisville Presbytery divided as
did the Walnut Street Church and the pro!,slavery
group obtained admission into the Presbyterian
Church of the Confederate States. In Julie 1.867
the Presbyterian General Assembly for the United
States declared the Presbytery: and Synod rec-
ognized by the proslavery party were "in no
sense a true and lawful Synod and Presbytery in
connection with and under the care and authority
of the General Assembly of the Presbyterian
Church in the United States of America.".', They
were "permanently excluded from connection
with or representation in the Assembly. By the
same resolution the Synod and Presbytery adhered
to by those whom [the pro-slavery party] opposed
were declared to be the true and lawful Presbytery
of Louisville, and Synod of Kentucky." Id., at
692.
Litigation started in 1866 with a suit in the
state court by certain of the antislavery group, to
have declared their right to act as duly elected ad-
trol of the church session. 3. That by the constitution
of all Presbyterian churches, the session, which is the
governing body in each, is composed of the ruling elders
and pastor, and in all business of the session the majority
of its members govern, the number of elders for each
congregation being variable." Id., at 720.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
ditional elders "in the management of the church
property for purposes of religious worship." Id.,
at 685. As the Court of Appeals of Kentucky
thought that certain acts of the Louisville Presby-
tery and the General Assembly of the United
States, in pronouncing the additional elders duly
elected, were void as beyond their functions, id.,
at 693,18 it refused the plea of the antislavery
group and left the proslavery elders and trustees
in control of the Walnut Street Church.
Thereupon a new suit, Watson v. ' Jones, was
begun by alleged members of the church to secure
the use of the Walnut Street Church for the anti-
slavery group. This suit was to decide not the val-
idity of an election of elders fought out in Watson
v. Avery, supra, but which one of two bodies
should be recognized as entitled to the use of the
Walnut Street Presbyterian Church. It was de-
termined that plaintiffs had a beneficial interest
in the church property and therefore a standing
to sue for its proper use, if they were members.
Id., at 697, 714. A schism was recognized. Id.,
at 717. It was held :
"The trustees obviously hold possession
for the use of the persons who by the con-
stitution, usages, and laws of the Presby-
terian body, are entitled to that use." Id.,
at 720.
18 Watson v. Avery, 2 Bush (Ky.) 332, 347 et seq.
"But we hold that the assembly, like other courts, is
limited in its authority by the law under which it acts;
and when rights of property, which are secured to con-
gregations and individuals by the organic law of the
church, are violated by unconstitutional acts of the
higher [church] courts, the parties thus aggrieved are
entitled to relief in the civil courts, as in ordinary cases
of ' injury resulting from the violation of a contract, or
the fundamental law of a voluntary association." IN.,
at 349.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
They were required to recognize "the true uses
of the trust." Icl., at 722. Then turning to the
consideration of an hierarchical church, as de-
fined in n. 15, supra, and, as it found the Presby-
terian Church to be, this Court said :
"In this class of cases we think the rule of
action which should govern the civil courts,
founded in a broad and sound view of the
relations of church and state under our sys-
tem of laws, and supported by a preponderat-
ing weight of judicial authority is, that, when-
ever the questions of discipline, or of faith,
or ecclesiastical rule, custom, or lave have
been decided by the highest of these church
judicatories to which the matter has been car-
ried, the legal tribunals must accept, such
decisions as final, and as binding on them, in
their application to the case before them."
Id., at 727.
As the General Assembly of the Church had rec-
ognized the antislavery group II as the regular and
lawful Walnut Street Church and officers," id., at
694, newly elected, and the trial court had found
complainants members of that group, and had
entered a decree adjudging that this group's duly
chosen and elected pastor, ruling elders and trus-
tees "respectively entitled to exercise whatever
authority in the said church, or over its members
or property, rightfully belonged to pastor, elders,,
and trustees, respectively, in churches in connec-
tion with ' The Presbyterian Church in the United
States of America,' Old School, and according to
the regulations and usages of that church," id.,
at 698, this Court affirmed the decree.
In affirming, the Court recognized the contrar-
iety of views between jurists as to civil jurisdic-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
tion over church adjudications having an effect
upon property or its uses, when the civil courts
determine the church judicatory has violated the
church's organic law." Its ruling is summed up
in these words:
"In this country the full and free right to
entertain any religious belief, to practice any
religious principle, and to teach any religious
doctrine which does not violate the laws of
morality and property, and which does not in-
fringe personal rights, is conceded to all. The
law knows no heresy, and is committed to the
support of no dogma, the establishment of no
sect. The right to organize voluntary religious
associations to assist in the expression and
dissemination of any religious doctrine, and
to create tribunals for the decision of con-
troverted questions of faith within the asso-
ciation, and for the ecclesiastical government
of all the individual members, congregations,
and officers within the general association, is
unquestioned. All who unite themselves to
such a body do so with an implied consent to
this government, and are bound to submit to
it. But it would be a vain consent and would
lead to the total subversion of such religious
bodies, if any one aggrieved by one of their
decisions could appeal to the secular courts
and have them reversed. It is of the essence
of these religious unions, and of their right to
establish tribunals for the decision of ques-
tions arising among themselves, that those de-
cisions should be binding in all cases of eccle-
siastical cognizance, subject only to such ap-
19 Compare Watson v. Avery, n. 18, supra, at 349,
with Watson v. Jones, supra, at 732 et seq.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
peals as the organism itself provides' for."
Id., at 728-729.
This is applicable to "questions of discipline, or
of faith, or ecclesiastical rule, custom, or .law,"
id., at 727.20 This controversy concerning the right
to use St. Nicholas Cathedral is strictly a matter
of ecclesiastical government, the power of the
Supreme Church Authority of the Russian Ortho-
dox Church to appoint the ruling hierarch of the
archdiocese of North America. No one disputes
that such power did lie in that Authority prior to
the Russian Revolution.
Watson v. Jones, although it contains a refer-
ence to the relations of church and state under our
system of laws 21 was decided without depei ding
upon prohibition of state interference with the
free exercise of religion. It was decided in 1871,
before. judicial recognition of the coercive power
of the Fourteenth Amendment to protect the lim-
itations of the First Amendment against state ac-
tion. It long antedated the 1938 decisions of Erie
R. Co. v. Tompkins and Ruhlin v. New York ',Lif e
Ins. Co. 304 U. S. 64 and 202, and therefore, even
though federal jurisdiction in the case depended
solely on diversity, the holding was based on gen-
21 The decision has encountered vivid and strong
Grit:icisni for the breadth of its statement that where "a
subject-matter of dispute, strictly and purely ecelesi??
astical in its character," is decided, the civil court may
not examine the conclusion to see whether the decision
exceeds the powers of the judicatory. Id., at 733. See
Zollmann, American Church Law (1933), c. 9, p. 291.
The criticism does not go so far, however, as to condemn
the nonreviewability of questions of faith, religious
doctrine and ecclesastical government, Watson v. Jones,
at 729, 732, when within the "express or implied stipu-
lations" of the agreement of membership. Zollminn,
supra, ??310, 311, 315, 340.
21 Id., at 727. See pp. 113, 114-115, supra.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
eral law rather than Kentucky law.22 The opinion
radiates, however, a spirit of freedom for re-
ligious organizations, an independence from secu-
lar control or manipulation-in short, power to
decide for themselves, free from state interfer-
ence, matters of church government as well as
those of faith and doctrine. Freedom to select the
clergy, where no improper methods of choice are
proven,23 we think, must now be said to have fed-
eral constitutional protection as a part of the free
exercise of religion against state interference.
22 Barkley v. Hayes, 208 F. 319; . 334; Sherard v.
Walton, 206 F. 562, 564; Helm v. Zarecor, 213 F. 648,
657. .
23 Gonzalez v. Archbishop, 280 U. S. 1, 16-17:
"Because the appointment is a canonical act, it is the
function of the church authorities to determine what
the essential qualifications of a chaplain are and whether
the candidate possesses them. In the absence of fraud,
collusion, or arbitrariness, the decisions of the proper
church tribunal on matters purely ecclesiastical, although
affecting civil rights, are accepted in litigation before
the secular courts as conclusive, because the parties in
interest made them so by contract or otherwise. Under
like circumstances, effect is given in the courts to the
determinations of the judicatory bodies established by
clubs and civil associations."
See, Brundage v. Deardorf, 55 F. 839, where Taft,
Circuit Judge, in overruling a demurrer, stated: "Even
if the supreme judicatory has the right to construe the
limitations of its own power, and the civil courts may
not interfere with such a construction, and must take
it as conclusive, we do not understand the supreme
court, in Watson v. Jones, to hold that an open and
avowed defiance of the original compact, and an express
violation of it, will be taken as a decision of the supreme
judicatory which is binding on the civil courts." P.
847.
Later the case was considered on appeal by the Cir-
cuit Court of Appeals ; Lurton, Circuit Judge, writing,
thought that the facts proven showed conclusively that
Watson v. Jones did control. 92 F. 214, 230.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
Legislative Power.-The Court of Appeals of
New York recognized, generally, the soundness
of the philosophy of ecclesiastical control of
church administration and polity but concluded
that the exercise of that control was not free from
legislative interference .2-' That Court presented
forcefully the argument supporting legislative
power to act on its own knowledge of "the Soviet
attitude toward things religious." 302 N. 'Y., at
32-33, 96 N.'E. 2d, at 74. It was said :
"The Legislature realized that the North
American church, in order to be free of So-
viet interference in its affairs, had declared
its temporary administrative autonomy in
1924, pursuant to the ukase of 1920, while re-
taining full spiritual communion with the
patriarchate, and that there was aj real
danger that those properties and temporali-
ties long enjoyed and used by the Russian
Orthodox Church worshippers in this State
would be taken from them by the representa-
tives of the patriarchate." 302 N. Y., at 33,
96 N. E. 2d, at 74.
It was thought that American Communications
Assn. v. Douds, 339 U. S. 382, supported the thesis
that where there is some specific evil, found' as a
fact, "some infringement upon traditional lib-
erties was justifiable" to effect a cure. 302 N. Y.,
at 31, 96 N. E. 2d, at 73. On that reasoning it
was thought permissible, in view "of the changed
situation of the patriarchate in Russia," to re--
place it with the Russian Church in America as the
ruling authority over the administration of the
church. The legal basis for this legislative sub-
stitution was found in the theory that the Rus-
sian. Church in America "was the trustee which
24 St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1,, 30,
96 N. E. 2d 56, 72; note 12, supra.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
`may be relied upon to carry out more effectively
and faithfully the purposes of this religious trust
(Carrier v. Carrier, 226 N. Y. 114).' " 302 N. Y.,
at 30, 96 N. E. 2d, at 72. Mindful of the authority
of the Court of Appeals in its interpretation of
the powers of its own legislature and with respect
for its standing and ability, we do not agree with
its statement as to legislative power over religious
organizations.
In our view the Douds case may not be inter-
preted to validate New York's Article 5-C. That
case involved the validity of ? 9 (h) of the National
Labor Relations Act as amended, 61 Stat. 136, 146,
29 U. S. C. ? 159 (h). That section forbade the
N. L. R. B. from acting at the suggestion of a
labor organization unless affidavits of its officers
were filed denying affiliation with subversive or-
ganizations or belief in the overthrow of this Gov-
ernment by force or other unconstitutional means.
We upheld the enactment as a proper exercise of
the power to protect commerce from the evil of
disruption from strikes so politically inspired.
In so doing we said, "legitimate attempts to pro-
tect the public, not from the remote possible effects
of noxious ideologies, but from present excesses
of direct, active conduct, are not presumptively
bad because they interfere with and, in some of
its manifestations, restrain the exercise of First
Amendment rights." 339 U. S., at 399. And
added, "But insofar as the problem is one of
drawing inferences concerning the need for regu-
lation of particular forms of conduct from con-
flicting evidence, this Court is in no position to
substitute its judgment as to the necessity or de-
sirability of the statute for that of Congress."
Id., at 400. It is an exaggeration to say that those
sound statements point to a legislative power to
take away from a church's governing body and its
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
duly ordained representative the possession and
use of a building held in trust for the purposes for
which it is being employed because of an appre-
hension, even though reasonable, that it may be
employed for improper purposes. In Douds we
saw nothing that was aimed at the free expres-
sion of views. Unions could have officers with
such affiliations and political purposes as they
might choose but the Government was not com-
pelled to allow those officers an opportunity to
disrupt commerce for their own political ends.
We looked upon the affidavit requirement as an
assurance that disruptive forces would not utilize
a government agency to accomplish their pur-
poses. Id., at 403.
In upholding the validity of Article 5-C, the
Yew York Court of Appeals apparently assumes
Article 5-C does nothing more than permit the
trustees of the Cathedral to use it for services
consistent with the desires of the members of the
Russian Church in America. Its reach goes far
beyond that point. By fiat it displaces one church
administrator with another. It passes the control
of matters strictly ecclesiastical from one church
authority to another. It thus intrudes for the
benefit of one segment of a church the power of
the state into the forbidden area of religious free-
dom contrary to the principles of the First
Amendment. Such prohibition differs from the
restriction of a right to deal with Government
allowed in Douds, in that the Union in the Douds
case had no such constitutionally protected right.
New York's Article 5-C directly prohibits the free
exercise of an ecclesiastical right, the Church's
choice of its hierarchy.
We do not think that New York's legislative
application of a cy-pres doctrine to this trust
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
avoids the constitutional rule against prohibition
of the free exercise of religion. Late Corpora-
tion of Latter-Day Saints v. United States, 136
U. S. 1, relied upon by the appellee, does not sup-
port its argument. There the Church of Jesus
Christ of Latter-Day Saints had been incorpo-
rated as a religious corporation by the State of
Deseret, with subsequent confirmation by the
Territory of Utah. Its property was held for
religious and charitable purposes. That charter
was revoked by Congress and some of the prop-
erty of the church was escheated to the United
States for the use of the common schools of Utah.
This Court upheld the revocation of the charter,
relying on the reserved power of the Congress
over the acts of territories, 136 U. S., at 45-46.
The seizure of the property was bottomed on the
general rule that where a charitable corporation
is dissolved for unlawful practices, id., at 49-50,
the sovereign takes and distributes the property
according to the cy-pres doctrine to objects of
charity and usefulness, e. g., schools. Id., at 47,
50-51. A failure of the charitable purpose could
have the same effect. Id., at 59. None of these
elements exist to support the validity of the New
York statute putting the Russian Orthodox
churches of New York under the administration
of the Russian Church in America. See notes 2
and 3, supra.
The record before us shows no schism over faith
or doctrine between the Russian Church in Amer-
ica and the Russian Orthodox Church. It shows
administrative control of the North American
Diocese by the Supreme Church Authority of the
Russian Orthodox Church, including the appoint-
ment of the ruling hierarch in North America
from the foundation of the diocese until the Rus-
sian Revolution. We find nothing that indicates
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
a relinquishment of this power by the Russian
Orthodox Church.
Ours is a government which by the "law of its
being" allows no statute, state or national, that
prohibits the free exercise of religion. There are
occasions when civil courts must draw lines be-
tween the responsibilities of church and state for
the disposition or use of property.25 Even in
those cases when the property right follows as an
incident from decisions of the church custom or
law on ecclesiastical issues, the church rule con-
trols.26 This under our Constitution necessarily
follows in order that there may be free exercise of
religion.
The decree of the Court of Appeals of New York
must be reversed, and the case remanded to that
court for such further action as it deems proper
and not in contravention of this opinion.
It is so ordered.
MIL. JUSTICE FRANKFURTER, concurring.*
Let me put to one side the question whether
in our day a legislature could, consistently with
due process, displace the judicial process and
decide a particular controversy affecting prop-
erty so as to decree that A not B owns it or is
entitled to its possession. Obviously a legisla-
ture would not have that power merely because
the property belongs to a church.
25 Ponce v. Roman Catholic Church, 210 U. S. 296,
322.
26 Watson v. Jones, supra; Barkley v. Hayes, 208 F.
319, 327, affirmed on appeal, Duvall v. Synod, 222 F.
669; Shepard v. Barkley, 247 U. S. 1.
* [Joined by MR. JUSTICE BLACK and MR. JUSTICE
DOUGLAS, see post, p. 126-(p. 151, infra).]
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
In any event, this proceeding rests on a claim
which cannot be determined without intervention
by the State in a religious conflict. St. Nicholas
Cathedral is not just a piece of real estate. It is
no more that than is St. Patrick's Cathedral or
the Cathedral of St. John the Divine. A cathe-
dral is the seat and center of ecclesiastical
authority. St. Nicholas Cathedral is an archi-
episcopal see of one of the great religious organi-
zations. What is at stake here is the power to
exercise religious authority. That is the essence
of this controversy. It is that even though the
religious authority becomes manifest and is ex-
erted through authority over the Cathedral as
the outward symbol of a religious faith.
The judiciary has heeded, naturally enough, the
menace to a society like ours of attempting to set-
tle such religious struggles by state action. And
so, when courts are called upon to adjudicate dis-
putes which, though generated by conflicts of
faith, may fairly be isolated as controversies
over property and therefore within judicial com-
petence, the authority of courts is in strict sub-
ordination to the ecclesiastical law of a particular
church prior to a schism. Watson v. Jones, 13
Wall. 679. This very limited right of resort to
courts for determination of claims, civil in their
nature, between rival parties among the com-
municants of a religious faith is merely one aspect
of the duty of courts to enforce the rights of mem-
bers in an association, temporal or religious, ac-
cording to the laws of that association. See Gon-
zalez v. Archbishop, 280 U. S. 1, 16-17.
Legislatures have no such obligation to adjudi-
cate and no such power. Assuredly they have
none to settle conflicts of religious authority and
none to define religious obedience. These aspects
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
of spiritual differences constitute the heart of this
controversy. The New York legislature decreed
that one party to the dispute and not the other
should control the common center of devotion. In
doing so the legislature effectively authorized one
party to give religious direction not only to its
adherents but also to its opponents. See St.
Nicholas Cathedral v. Kedr'off, 302 N. Y. 1, 24-29,
96, N. E. 2d 56, 68-72.
The arguments by which New York seeks to
justify this inroad into the realm of faith are
echoes of past attempts at secular intervention
in religious conflicts. It is said that an impressive
majority both of the laity and of the priesthood of
the old local church now adhere to the party whose
candidate New York enthroned, as it were, as
Archbishop. Be that as it may, it is not a func-
tion of civil government under our constitutional
system to assure rule to any religious body by a
counting of heads. Our Constitution does assure
that anyone is free to worship according to his
conscience. A legislature is not free to vest in a
schismatic head the means of acting under the
authority of his old church, by affording him the
religious, power which the use and occupancy of
St. Nicholas Cathedral make possible.
Again, it is argued that New York may protect
itself from dangers attributed to submission by
thority. To reject this claim one does not have
to indulge in the tendency of lawyers to carry
arguments to the extreme of empty formal logic.
Scattered throughout the country there are re-
ligious bodies with ties to various countries of a
world in tension-tension due in part to shifting
political affiliation and orientation. The consid-
eration which permeates the court's opinion below
would give each State the right to assess the cir-
cumstances in the foreign political entanglements
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
of its religious bodies that make for danger to the
State, and the power, resting on plausible legis-
lative findings, to divest such bodies of spiritual
authority and of the temporal property which
symbolizes it.
Memory is short but it cannot be forgotten that
in the State of New York there was strong feel-
ing against the Tsarist regime at a time when the
Russian Church was governed by a Procurator
of the Tsar. And when Mussolini exacted the
Lateran Agreement, argument was not wanting
by those friendly to her claims that the Church
of Rome was subjecting herself to political au-
thority.1- The fear, perhaps not wholly ground-
less, that the loyalty of its citizens might be
diluted by their adherence to a church entangled
in antagonistic political interests, reappears in
history as the ground for interference by civil
the mother church in Moscow to political au-
government with religious attachments.' Such
fear readily leads to persecution of religious be-
liefs deemed dangerous to ruling political auth-
ority. It was on this basis, after all, that Bis-
marck sought to detach German Catholics from
Rome by a series of laws not too different in pur-
1 The Encyclopedia Britannica recounts that under
the agreement between the Papal See and Mussolini,
"The supremacy of the state was recognized by com-
pelling bishops and archbishops to swear loyalty to the
government." Encyclopedia Britannica: "Anticlerical-
ism," 62, 62A (1948 ed.).
2 Such apprehension, at least in part, seems to have
underlain two important religious controversies in a
nation as devoted to freedom as Great Britain and as
recently as a century ago. Both the dispute giving rise
to the Free Church of Scotland Appeals and the brief
but vigorous anti-Catholic outburst of 1850 are not un-
fairly attributable to a claim by the State of compre-
hensive loyalty, undeflected by the competing claims
of religious faith. See Laski, Studies in the Problem
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
port from that before us today.3 The long, unedi-
fying history of the contest between the secular
state and the church is replete with instances of
attempts by civil government to exert pressure
upon religious authority. Religious leaders have
often made gestures of accommodation to such
pressures. History also indicates that the vitality
of great world religions survived such efforts. In
any event, under our Constitution it is not open
to the governments of this Union to reinforce the
of Sovereignty, 27-68, 121-210. See also Buchanan, The
Ten Years' Conflict (Edinburgh, 1849) ; Free Church
of Scotland v. Overtoun, [1904] A. C. 515; The Free
Church of Scotland Appeals (Orr. ed., Edinburgh,
1904).
3 Reichs-Gesetzblatt, 1871, p. 442; Reichs-Gesetzblatt,
1872, p. 253; Reichs-Gesetzblatt, 1874, p. 43 Reichs-
Gesetzblatt, 1876, p; 28; 5 Gesetz-Sammlung fur die
Koniglich Preussischen Staaten 154, 221, 223, 225, 228,
337, 342; 6 id., at 30, 38, 40, 75, 170; 7 id., at 291.
These laws have been, thus summarized: "The Falk Laws
are an attempt to insist on the universal paramountcy
of German influences. The expulsion of the Jesuits
removed an order which he [Bismarck] believed to be
concerned with the promotion of Polish interests. The
refusal of bishoprics to any save a German who has
followed a course of study approved by the government
has a clear purport . . of purging the Catholic epis-
copate of men not likely to be in sympathy with Ger-
man ideals . . . . The twenty-fourth article went even
further and gave the State the right of interference
with ecclesiastical functions where it deemed them im-
properly performed. . The law of the twentieth
of May, 1874, virtually handed over the control of
vacant bishoprics to the State .... Catholic Churches
on Prussian soil were handed over to the old Catholics
[those refusing to adhere to the newly-promulgated
dogma of papal infallibility] in such parishes as those
in which the majority consisted of their sympathisers,
for certain hours of the day . . . . " Laski, op. cit. supra,
note 2, at 256-258. Bismarck's Kulturkampf, of which
these laws were a part, is fully discussed in Goyau,
Bismarck et l'Eglise. A full text of the laws may be
found in the appendix to that work.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
loyalty of their citizens by deciding who is the
true exponent of their religion.
Finally, we are told that the present Moscow
Patriarchate is not the true superior church of
the American communicants. The vicissitudes of
war and revolution which have beset the Moscow
Patriarchate since 1917 are said to have resulted
in a discontinuity which divests the present Patri-
arch of his authority over the American church.
Both parties to the present controversy agree that
the present Patriarch is the legitimately chosen
holder of his office, and the account of the pro-
ceedings and pronouncements of the American
schismatic group so indicates. Even were there
doubt about this it is hard to see by what war-
rant the New York legislature is free to substi-
tute its own judgment as to the validity of Pat-
riarch Alexi's claim and to disregard acknow-
ledgment of the present Patriarch by his co-equals
in the Eastern Confession, the Patriarchs of Con-
stantinople, Alexandria, Antioch, and Jerusalem,
and by religious leaders throughout the world,
including the present Archbishop of York.4
These considerations undermine the validity of
the New York legislation in that it enters the
domain of religious control barred to the States
by the Fourteenth Amendment.
MR. JUSTICE BLACK agrees with this opinion on
the basis of his view that the Fourteenth Amend-
ment makes the First Amendment applicable to
the States.
MR. JUSTICE DOUGLAS, while concurring in the
opinion of the Court, also joins this opinion.
MR. JUSTICE JACKSON, dissenting.
4 See Garbett, In an Age of Revolution, 207-213;
Niemaller, Why I Went to Moscow, The Christian
Century, March 19, 1952, p. 338.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
New York courts have decided an ordinary
ejectment action involving possession of New
York real estate in favor of the plaintiff, a corpo-
ration organized under the Religious Corporations
Law of New York under the name "Saint Nicholas
Cathedral of the Russian Orthodox Church in
North America." Admittedly, it holds, and since
1925 has held, legal title to the Cathedral prop-
erty. The New York Court of Appeals decided
that it also has the legal right to its possession
and control.
The appellant Benjamin's defense against this
owner's demand for possession and the basis of
his claimed right to enjoy possession of property
he admittedly does not own is set forth in his
answer to the ejectment suit in these words:
"Said premises pursuant to the above rules of the
Russian Orthodox Church are held in trust for
the benefit of the accredited Archbishop of the said
Archdiocese, to be possessed, occupied and used by
said Archbishop as his residence, as a place for
holding religious services, and other purposes re-
lated to his office and as the seat and headquarters
for the administration, by him, of the affairs of the
Archdiocese both temporal and spiritual." And,
says the appellant Benjamin, he is that Arch-
bishop. These allegations are denied, and they
define the issues as tendered to the state courts.
I greatly oversimplify the history of this con-
troversy to indicate its nature rather than to prove
its merits. This Cathedral was incorporated and
built in the era of the Czar, under the regime of a
state-ridden church in a church-ridden state. The
Bolshevik Revolution may have freed the state
from the grip of the church, but it did not free the
church from the grip of the state. It only brought
to the top a new master for a captive and sub-
missive ecclesiastical establishment. By 1945, the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
153
Moscow patriarchy had been reformed and manned
under the Soviet regime and it sought to re-es-
tablish in other countries its prerevolutionary
control of church property and its sway over the
minds of the religious. As the Court's opinion
points out, it demanded of the Russian Church in
America, among other things, that it abstain
"from political activities against the U. S. S. R."
The American Cathedral group, along with others,
refused submission to the representative of the
Moscow Patriarch, whom it regarded as an arm of
the Soviet Government. Thus, we have an osten-
sible religious schism with decided political over-
tones.
If the Fourteenth Amendment is to be inter-
preted to leave anything to the courts of a state to
decide without our interference, I should suppose
it would be claims to ownership or possession of
real estate within its borders and the vexing tech-
nical questions pertaining to the creation, inter-
pretation, termination, and enforcement of uses
and trusts, even though they are for religious and
charitable purposes. This controversy, I believe,
is a matter for settlement by state law and not
within the proper province of this Court.
I.
As I read the prevailing opinions, the Court
assumes that some transfer of control has been
accomplished by legislation which results in a
denial of due process. This, of course, would raise
a question of deprivation of property, not of lib-
erty, while only the latter issue is raised by the
parties. And it could be sustained only by a find-
ing by us that the legislation worked a transfer
rather than a confirmation of property rights.
The Court of Appeals seems to have regarded the
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
statute merely as a legislative reaffirmation of
principle the Court would find to be controlling
in its absence.
But this Court apparently thinks that by more
enactment of the statute the legislature invaded a
field of action reserved to the judiciary. How-
ever desirable we may think a rigid separation of
powers to be (and I, for one, think it is basic in
the Federal Government), I do not think the
Fourteenth Amendment undertakes to control
distribution of powers within the states. At all
events, I do not think we are warranted in holding
that New York may not enact this legislation in
question, which is in form and in substance an
amendment of its Religious Corporations Law.
Nothing in New York law required this denomi-
nation to incorporate its Cathedral. The Religi-
ous Corporations Law of the State expressly
recognizes unincorporated churches (?2) and un-
dertakes no regulation of them or their affairs.
But this denomination wanted the advantages of
a corporate charter for its Cathedral, to obtain
immunity from personal liability and other bene-
fits. This statute does not interfere with religious
freedom but furthers it. If they elect to come
under it, the statute makes separate provision for
each of many denominations with corporate con-
trols appropriate to its own ecclesiastical order.
When it sought the privilege of incorporation
under the New York law applicable to its denomi-
nation, it seems to me that this Cathedral and all
connected with its temporal affairs were sub-
mitted to New York law.
As a consequence of this Court's decision in
Dartmouth College v. Woodward, 4 Wheat. 518,
the Constitution of New York since 1846 has au-
thorized the legislature to create corporations by
general laws and special acts, subject, however,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
to a reservation that all such acts "may be altered
from time to time or repealed." New York Const.,
Art. X, ?1. That condition becomes a part of every
corporate charter subsequently granted by New
York. Lord v. Equitable Life Assurance Society,
194 N. Y. 212, 87 N. E. 443; People v. Gass, 190
N. Y. 323, 83 N. E. 64; Pratt Institute v. New York,
183 N. Y. 151, 75 N. E. 1119.
What has been done here, as I see it, is to exer-
cise this reserved power which permits the State
to alter corporate controls in response to the
lessons of experience. Of course, the power is not
unlimited and could be so exercised as to deprive
one of property without due process of law. But,
I do not think we can say that a legislative appli-
cation of a principle so well established in our
common law as the cy-pres doctrine is beyond the
powers reserved by the New York Constitution.
II.
The Court holds, however, that the State
cannot exercise its reserved power to control this
property without invading religious freedom, be-
cause it is a Cathedral and devoted to religious
uses. I forbear discussion of the extent to which
restraints imposed upon Congress by the First
Amendment 'are transferred against the State by
the Fourteenth Amendment beyond saying that I
consider that the same differences which apply to
freedom of speech and press (see dissenting opin-
ion in Beauharnais v. Illinois, 343 U. S. 250, 287)
are applicable to questions of freedom of religion
and of separation of church and state.
It is important to observe what New York has
not done in this case. It has not held that Ben-
jamin may not act as Archbishop or be revered
as such by all who will follow him. It has not held
that he may not have a Cathedral. Indeed, I think
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
New York would agree that no one is more in
need of spiritual guidance than the Soviet faction.
It has only held that this cleric may not have a
particular Cathedral which, under New York law,
belongs to others. It has not interfered with his
or anyone's exercise of his religion. New York
has not outlawed the Soviet-controlled sect nor
forbidden it to exercise its authority or teach its
dogma in any place whatsoever except on this
piece of property owned and rightfully possessed
by the Cathedral Corporation.
The fact that property is dedicated to a reli-
gious use cannot, in my opinion, justify the Court
in sublimating an issue over property rights into
one of deprivation of religious liberty which alone
would bring in the religious guaranties of the
First Amendment. I assume no one would pre-
tend that the State cannot decide a claim of tres-
pass, larceny, conversion, bailment or contract,
where the property involved is that of a religious
corporation or is put to religious use, without
invading the principle of religious liberty.
Of course, possession of the property will help
either side that obtains it to maintain its prestige
and to continue or extend its sway over the minds
and souls of the devout. So would possession of
a bank account, an income-producing office build-
ing, or any other valuable property. But if both
claimants are religious corporations or person-
alities, can not the State decide the issues that
arise over ownership and possession without in-
vading the religious freedom of one or the other
of the parties?
Thus, if the American group, which owns the
title to the Cathedral, had by force barred Ben-
jamin from entering it physically, would the Court
say it was an interference with religious freedom
to entertain and decide his ejectment action? If
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
state courts are to decide such controversies at all
instead of leaving them to be settled by a show
of force, is it constitutional to decide for only
one side of the controversy and unconstitutional
to decide for the other? In either case, the reli-
gious freedom of one side or the other is impaired
if the temporal goods they need are withheld or
taken from them.
As I have earlier pointed out, the Soviet Ec-
clesiast's claim, denial of which is said to be con-
stitutional error, is not that this New York prop-
erty is impressed with a trust by virtue of New
York law. The claim is that it is impressed with
a trust by virtue of the rules of the Russian
Orthodox Church. This Court so holds.
I shall not undertake to wallow through the
complex, obscure and fragmentary details of secu-
lar and ecclesiastical history, theology, and canon
law in which this case is smothered. To me, what-
ever the canon law is found to be and whoever is
the rightful head of the Moscow patriarchate, I
do not think New York law must yield to the
authority of a foreign and unfriendly state
masquerading as a spiritual institution. (See
"The Soviet Propaganda Program," Staff Study
No. 3, Senate Subcommittee on Overseas Informa-
tion Programs of the United States, 82d Cong.,
2d -Sess.)
I have supposed that a State of this Union was
entirely free to make its own law, independently
of any foreign-made law, except as the Full Faith
and Credit Clause of the Constitution might re-
quire deference to the law of a sister state or the
Supremacy Clause require submission to federal
law. I do not see how one can spell out of the
principles of separation of church and state a doc-
trine that a state submit property rights to settle-
ment by canon law. If there is any relevant infer-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
ence to be drawn, I should think it would be to the
contrary, though I see no obstacle to the state
allowing ecclesiastical law to govern in such a
situation if it sees fit. I should infer that from
the trend of such decisions as Erie R. Co. v. Tomp-
kins, 304 U. S. 64; Klaxon Co. v. Stentor Electric
Mfg. Co., 313 U. S. 487; Griffin v. McCoach, 313
U. S. 498.
The only ground pressed upon this appeal is
that the judgment below violates the religious
freedom guaranteed by the Fourteenth Amend-
ment. I find this contention so insubstantial that
I would dismiss the appeal. Whether New York
has arrived at the correct solution of this ques-
tion is a matter on which its own judges have dis-
agreed. But they have disagreed within the area
which is committed to them for agreement or dis-
agreement and I find nothing which warrants our
invading their jurisdiction.
306 New York 38
SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN
ORTHODOX CHURCH IN NORTH AMERICA, Appellant,
against JOHN KEDROFF and BENJAMIN FEDCHEN-
KOFF, as Archbishop of the Archdiocese of North
America and the Aleutian Islands of the Russian
Orthodox Greek Catholic Church, Respondents.*
MOTION to amend remittitur. On appeal from a
judgment of the Appellate Division of the Supreme
Court in the first judicial department, entered
January 25, 1950, affirming, by a divided court,
a judgment of the Supreme Court, in favor of
* Motion for leave to file petition for writ of mandamus
denied, 346 U. S. 893.-[REP.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
defendants, entered in New York County upon a
dismissal of the complaint by the court at a Trial
Term (BOTEIN, J.; opinion 192 Misc. 327), without
a jury, at the close of the entire case, the Court
of Appeals, on November 30, 1950, reversed the
judgments of the Appellate Division and Trial
Term and directed judgment for plaintiff. (302
N. Y. 1.) The decision of the Court of Appeals
was reversed by the Supreme Court of the United
States. (344 U. S. 94.)
PHILIP ADLER for motion.
RALPH MONTGOMERY ARKUSH opposed.
1. Plaintiff tried the action on a twofold theory
(a) that at common law the administrative au-
tonomy of the North American district of the
Russian Orthodox Church was originally justified
by virtue of the ukase of November 20, 1920, and
is still justified by political conditions in Soviet
Russia, and (b) that the New York Legislature
had recognized these facts and confirmed plain-
tiff's rights by the enactment of article 5-C of the
Religious Corporations Law. II. The courts below
erred, as matter of law, in their treatment of plain-
tiff's common-law theory. III. The decision of the
Court of Appeals was based solely on the statute
and the United States Supreme Court made no
decision on the common-law theory. IV. The
United States Supreme Court made no ruling
which would bar the courts of this State from ad-
judicating the case upon its merits and upon estab-
lished common-law principles. Plaintiff is entitled
to a new trial.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
CONWAY, J. The decision of this court in St.
'Nicholas Cathedral v. Kedroff (302 N. Y. 1), di-
recting judgment in favor of the plaintiff, i.e., the
group known as the "Russian Church in Amer-
ica," has been reversed by the Supreme Court of
the United States in a majority opinion written
by Mr. Justice REED, and the case has been re-
manded to this court "for such further action as
it deems proper and not in contravention of this
opinion." (Kedroff v. St. Nicholas Cathedral, 344
U. S. 94, 121.) On the basis of such reversal and
remand, the defendants-respondents, i.e., the ap-
pointees of the Moscow Patriarchate, now move,
in substance, for an order directing final judg-
ment in their favor. Adjudication of the motion
requires a re-examination of the grounds and ra-
tionale of our decision and the extent to which it
has been affected by the action of the Supreme
Court.
The majority opinion in this court very clearly
divided consideration of the case under two heads
-one statutory and the other common law. It
was held that error, in any event, had been com-
mitted below, and that, under common-law prin-
ciples, a new trial would be required, but that,
under the statute, which was deemed controlling,
final judgment for plaintiff was mandatory.
Amendment of the remittitur was granted to make
clear that the ultimate basis for the decision was
the statute and that a contention that such statute
was unconstitutional had been rejected (302 N. Y.
689). Thereupon the Supreme Court entertained
the case and eventually, in an opinion, decided
that the statute, as construed and applied by this
court, did indeed constitute a violation of the con-
stitutional right to the free exercise of religion,
and accordingly, as above noted, returned the mat-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
161
ter to us for such further action as we might deem
proper and not in contravention of the said opin-
ion. With the statutory phase of the case thus
authoritatively eliminated, we are left with the
alternative common-law base, which still stands
as the basis for future action.
The foregoing is a simplified summary of what
we conceive to be the present status of the case.
We shall now discuss these views in more detail.
The prevailing opinion in this court, reported
in 302 New York at pages 1 to 33, contains an ex-
tended review of the origins of this controversy-
the history of the Russian Orthodox Church, the
founding of the North American Diocese, and the
consecration of St. Nicholas Cathedral as the see,
the Bolshevik revolution, the persecution, sup-
pression and virtual extinction of the church in
Russia by the Soviet Government (pp. 4-9), the
patriarchal ukase of 1920 authorizing diocesan
bishops to assume full hierarchal power in the
event of cessation of the highest church adminis-
tration in Moscow, subject to confirmation by such
authority upon its re-establishment (p. 7), the
prior litigations here (pp. 10-15), the renewed ac-
tivity of the Moscow Patriarchate and the sobor
of 1945 (p. 17), the unsuccessful efforts at recon-
ciliation (pp. 17-18), and the commencement of
this action (pp. 19-21).
For over twenty years prior to the commence-
ment of this action, St. Nicholas Cathedral-the
historical and traditional see of the Russian Ortho-
dox Church in North America-had been occupied
by John S. Kedrovsky and his family (302 N. Y.,
at pp. 4, 12, 16), Kedrovsky was not a cleric of
the Russian Orthodox Church, but rather of the
short-lived "Renovated" or "Living Church",
which had been created and supported by the com-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
162
munists in Russia as a divisive influence in the
campaign against religion after the Bolshevik
revolution, and which purported to assume con-
trol of the church abroad. Everyone now admits
and agrees that this "Renovated Church" was
uncanonical and had no standing whatever.
Nevertheless, by judgment of the Appellate Divi-
sion in 1925 (214 App. Div. 483), affirmed by this
court without opinion in 1926 (Kedrovsky v.
Rojdesvensky, 242 N. Y. 547), Kedrovsky wrested
possession of the cathedral from Archbishop
Platon, the true head of the North American
Diocese who had been appointed as such by Patri-
arch Tikhon. That decision, incidentally, was
supported on the ground that the occupant of the
cathedral must be an appointee of the central
church authorities in Russia and.that Kedrovsky,
not Platon, was the current appointee of the au-
thorities then existing, viz., the "Renovated
Church". This, we think, is an illustration of the
difficulty in applying a mechanical test in such a
situation without full examination and proof as to
the nature of the so-called "central church au-
thorities". The courts, perhaps, were then too
close in point of time to realize what had really
occurred in Russia and they did not have .access to
the facts now available. In retrospect, however,
and with the knowledge born of aftersight, it is
now apparent that, by virtue of that decision, the
rightful occupant was ousted from the cathedral
and its administration and possession turned over
to a schismatic whose sect actually became extinct
after a few years as is admitted by both parties
herein.
Faced with this usurpation of the authority of
the original patriarchal central church, and with
the diocese in chaos and confusion, threatened
with the loss of its temporalities to schismatics
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
such as Kedrovsky, Archbishop Platon convened
an American sobor and the administrative autono-
my of the new North American metropolitan dis-
trict was declared (302 N. Y., at pp. 11-12). This
action: was taken in pursuance of Patriarch
Tikhon's ukase No. 362 of 1920, a remarkably
prescient document, which contained instructions
for diocesan bishops in case the activity of the
highest church administration should stop and in
case the cessation of activity should acquire 11 'a
protracted or even permanent character' ". In
that event, the diocesan bishop was officially em-
powered to 11 'organize the diocesan administra-
tion suitable to conditions created' ", with the
proviso that 11 'all measures that were taken
locally in accordance with the present instruc-
tions * * * must be submitted for confirmation
later to the Central Church Authority when it is
re-established.' " (302 N. Y., at p. 7.) The Ameri-
can sobor, in establishing the metropolitan dis-
trict, stated that the " `final regulation' " of the
status of the North American church was to be
left to a " `future Sobor of the Russian Orthodox
Church which will be legally convoked, legally
elected, will sit with the participation of represen-
tatives of the American Church under conditions
of political freedom * * * and will be recognized
by the entire Oecumenical Orthodox Church as a
true Sobor of the Russian Orthodox Church.' "
(302 N. Y., at p. 12.)
Two years after our affirmance in the Cathedral
case (supra) we declined to follow such decision
to its logical conclusion. In Kedrovsky v. Rus-
sian Catholic Church (249 N. Y. 75) we reversed a
judgment which had directed Platen and the others
in the metropolitan district to turn over to Ked-
rovsky all the properties and deeds of the new
metropolitan district. Realizing that the legiti-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
mate claims of the new metropolitan district,
whose temporary administrative autonomy had
but recently been declared, were entitled to con-
sideration, and "In view of the dissensions that
have arisen", we returned the case to our Su-
preme Court, leaving it to that court, after full
consideration of the facts, and in the exercise
of its discretionary power, to achieve a result
whereby the faithful of the Russian Orthodox
Church in this country might continue to enjoy
their accustomed religious temporalities under
the supervision of trustees who might "be relied
upon to carry out more effectively and faithfully
the purposes of this religious trust" (pp. 77-78).
Finally, the autonomous status of the metro-
politan district, based upon the above-described
ukase of 1920, was expressly sustained in Waipa
v. Kushwara (259 App. Div. 843, motion for leave
to appeal denied 283 N. Y. 780).
The instant action was commenced by the plain-
tiff corporation, St. Nicholas Cathedral of the
Russian Orthodox Church in North America, as
the holder of the record title to the cathedral
premises. The corporation was created in 1925
by special act of the Legislature, and was com-
posed of Platon and others of the metropolitan
district. It is now controlled by and represents
Archbishop Leonty, the successor, in December,
1950, of Archbishop Theophilus, who was elected
as Platon's successor as head of the metropolitan
district. (The election of Leonty had not taken
place at the time of our first opinion which men-
tioned Theophilus as head of the metropolitan
district.) While the corporation continued to
hold title to the cathedral down through the years,
the cathedral itself was occupied by Kedrovsky
(by virtue of the aforesaid judgment in 242 N. Y.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
547 which we disregarded in 249 N. Y. 75) until
his death in 1934, and the metropolitan district
was enjoined from interfering with such posses-
sion. Kedrovsky's son, Nicholas, remained in
and occupied the cathedral from 1934 until 1944,
when he too died, at which time possession of the
cathedral passed informally to his brother, John
Kedroff, whose only status was that of a priest in
the concededly extinct "Renovated Church".
Meanwhile, following a period of several years
during which the central or patriarchal church
had virtually ceased to exist, one Sergius made a
compact with the Soviet Government and was ap-
pointed acting locum tenens of the patriarchal
throne in 1927 (302 N. Y., at p. 15). Sergius, in
1934, appointed Benjamin as " `permanent Rul-
ing Bishop of the Russian North American Dio-
cese' ", the order reciting that Benjamin had
" ' organized in New York a Diocesan Council and
that our North American Diocese has begun offi-
cial existence' " (302 N. Y., at pp. 15-16). During
all the period from his appointment in 1934 for
the purpose of forming such new diocese down to
the commencement of the instant action in 1945, it
does not appear that Benjamin asserted any claim
to occupancy of the cathedral or took any action
to recover possession of it, which conduct may
be said to constitute a practical interpretation of
his authority as contained in his appointment in
forming a new or different diocesan council and
North American Diocese.
The present action is in ejectment and was com-
menced in 1945, as above stated, against John
Kedroff, the second son of John S. Kedrovsky,
the said Kedroff having taken possession of the
cathedral informally on the death of his father
and brother without benefit of appointment by
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
anyone. It being quite obvious that Kedroff, on
these facts, would not have been able to retain
possession of the cathedral as against the claim
of plaintiff and of Theophilus, the then bishop of
the metropolitan district, and indeed could not
put in any defense, he (Kedroff) after the com-
mencement of this action requested reordination
as a priest by Benjamin in the latter's new dio-
cese. (302 N. Y., at p. 20.) Following his reor-
dination by Benjamin in the latter's new diocese,
Kedroff purported to "give" the cathedral to
Benjamin who was then permitted to intervene in
this action (302 N. Y., at pp. 20-21). Benjamin
then occupied the cathedral from October, 1945,
until June 6, 1947, when, in order to obtain an
adjournment of this action, he agreed to give up
possession of the cathedral (302 N. Y., at p. 21).
At the time of trial, Benjamin was living at 38
Halsey Street in Brooklyn.
In our opinion we also took note of the general
common-law principle developed in the American
courts, and notably expressed in Watson v. Jones
(13 Wall [U. S.] 679, 724-727) and in our own
case of Trustees of Presbytery of N. Y. v. West-
minster Presbyt. Church (222 N. Y. 305, 315) and
our statute, Religious Corporations Law (?? 4, 5),
that in a central or denominational church, the
decision of the highest church judicatories will be
accepted as final and conclusive by the civil courts
(p. 13). Mention was made on page 21 of the
controlling effect we were subsequently to ascribe
to the new article 5-C of the Religious Corpora-
tions Law, and then we stated (pp. 21-22) :
"Quite apart from this legislative action with
respect to the specific dispute here involved, we
think that, as a matter of common law as intimated
by our 1928 decision in Kedrovsky v. Russian
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
167
Catholic Church (249 N. Y. 75, supra), there was
ample basis and room for an exercise of the dis-
cretionary power of the Supreme Court over the
conduct of trustees, in favor of the North Ameri-
can metropolitan district. We think that in the
light of historical facts and the evidence in the
records before us, the conclusion would have been
fully warranted that the leaders of the North
American metropolitan district are the trustees
'who may be relied upon to carry out more effec-
tively and faithfully the purposes of this religious
trust' (pp. 77-78), i. e., who may administer the
temporalities of St. Nicholas Cathedral for the
benefit of the faithful for whose use it was orig-
inally dedicated.
"The courts below, in granting judgment herein
to defendants, did not determine, in the exercise
of their discretion, whether defendants could be
relied upon to carry out faithfully and effectively
the purposes of the religious trust. The West-
minster and Watson cases (supra), were cited and
the conclusion drawn that St. Nicholas Cathedral
must be occupied by an archbishop appointed by
the central authorities in Moscow and that Ben-
jamin, who was so appointed, was therefore
entitled to the possession of the cathedral. This,
we think, was error. The determinative issue in
the case, apart from the action of the Legislature
with respect to the problem, was whether there
exists in Moscow at the present time a true central
organization of the Russian Orthodox Church
capable of functioning as the head of a free inter-
national religious body. If the Moscow patri-
archal throne has been resurrected by the Soviet
Government solely as a means of influencing
opinion at home and abroad, and if it may now
operate on an international scale, not as a true
religious body, but only as an extension or imple-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
mentation of Russian foreign policy, then it is
clear that the North American metropolitan dis-
trict and not the appointee or ambassador of the
central authorities in Moscow, is the proper trus-
tee to manage for the benefit of the faithful in this
hemisphere those religious temporalities dedicated
to the use of the Russian Orthodox Mission and
Diocese prior to 1924 when it became an adminis-
tratively autonomous metropolitan district."
And later removing any possibility of ambiguity
as to our thoughts on this branch of the case, we
said (p. 24) : "In short, we think that further
inquiry might well have been made into the present
status of the patriarchate in Russia and we think
the Supreme Court should have determined, in the
exercise of its discretion, whether Benjamin, the
appointee of the central church authorities in
Moscow, or Metropolitan Theophilus, the arch-
bishop of the North American metropolitan dis-
trict, was the proper person to administer the
temporalities of St. Nicholas Cathedral and
whether he was the proper trustee `who may be
relied upon to carry out more effectively and faith-
fully the purposes of this religious trust (Carrier
v. Carrier, 226 N. Y. 114).' (Kedrovsky v. Russian
Catholic Church, 249 N. Y. 75, 77-78, supra.) That
was not done because it was thought that the cases
of Watson v. Jones (13 Wall. [U. S.1 679, supra),
and Trustees of Presbytery of N. Y. v. West-
minster Presbyt. Church (222 N. Y. 305, supra)
required a decision in favor of defendants and
that the earlier case of Kedrovsky v. Rojdesvensky
(242 N. Y. 547, supra), was determinative of some
phases of the problem. Our views on this aspect
of the controversy would require reversal and the
ordering of a new trial so that the Supreme Court
might exercise its discretion along the lines herein
indicated. It is unnecessary, however, to discuss
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
that further, for there is another ground requir-
ing reversal here and judgment in favor of plain-
tiff and the North American metropolitan district
which it represents."
Thus, in so many words, we announced that, in
the absence of the statute, we would order a new
trial at which findings might be made and discre-
tion exercised, concerning the existence and status
of the central church authorities in Moscow and
their ability to carry out effectively and faithfully
the purposes of the religious trust.
Although the prevailing, concurring and dissent-
ing opinions in this court adverted in detail to the
constitutional arguments presented in connection
with the statutory branch of the case (pp. 29-33,
35, 42-43), it was necessary for defendant to re-
quest amendment of the remittitur to make it clear
that such constitutional question had been neces-
sarily determined. We were careful in amending
the remittitur to limit the constitutional objections
solely to the statutory phase of the case. Thus,
we said (302 N. Y. 689, 690) : "* * * Upon this
appeal there was presented and necessarily passed
upon a question under the Constitution of the
United States, viz.: whether article 5-C of the
Religious Corporations Law, as construed by this
court, violated any rights of the defendants guar-
anteed by the First and the Fourteenth Amend-
ments to the Constitution of the United States.
This court held that the aforesaid statute did not
violate any of the rights of the defendants guar-
anteed by those amendments to the Constitution
of the United States."
After argument and submission of the case, the
Supreme Court ordered reargument and specifi-
cally requested counsel to include a discussion of
whether the judgment might be sustained on State
grounds (343 U. S. 972). It was only after both
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
parties concluded that it could not be so sustained
(because it depended upon the constitutionality
of the statute) that the Supreme Court considered
the constitutional issue on the merits. Thus the
court said (344 U. S. 94, 97) : "Because of the
constitutional questions thus generally involved,
we noted probable jurisdiction, and, after argu-
ment and submission of the case last term, ordered
reargument and requested counsel to include a dis-
cussion of whether the judgment might be sus-
tained on state grounds. 343 U. S. 972. Both par-
ties concluded that it could not, and the unequivo-
cal remittitur of the New. York Court of Appeals,
302 N. Y. 689 * * * specifically stating the con-
stitutionality of the statute as the necessary
ground for decision, compels this view and pre-
cludes any doubt as to the propriety of our de-
termination of the constitutional issue on the
merits. Grayson v. Harris, 267 U. S. 352; Indi-
ana ex rel. Anderson v. Brand, 303 U. S. 95. The
case now .has been reargued and submitted."
We mention this because it makes clear that the
only basis for the appeal to the Supreme Court
of the United States was our conclusion that the
statute had controlling effect and that it was not
unconstitutional.
Mr. Justice REED, delivering the opinion of the
court, made express mention of our alternative,
nonlegislative basis for decision. He pointed out
that we had considered " 'whether there exists in
Moscow at the present time a true central organi-
zation of the Russian Orthodox Church capable
of functioning as the head of a free international
religious body' " and he noted that we had "con-
cluded that this aspect of the controversy had not
been sufficiently developed to justify a judgment
upon that ground. 302 N. Y., at 22-24" (344 U. S.,
at p. 106).
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
171
He then proceeded upon the assumption that the
prerevolutionary authority and paramount juris-
diction of the Moscow Patriarchate over the
American church has continued without change
and without interruption down to the present day.
In the light of this assumption, Justice REED then
considered the narrow question of the legislative
power of New York to enact article 5-C of the
Religious Corporations Law, as that statute was
construed by us. His opinion throughout refers
to this legislative aspect of the controversy. Thus,
he says that our determination "was made on the
authority of Article 5-C" (p. 97), that "Article
5-C is challenged as invalid" (p. 100), that this
court "depended for its judgment " * * upon
Article 5-C" (p. 106) and he concluded for the
Supreme Court that "we think that the statute
here in question passes the constitutional limits"
(p. 107), that "Such a law violates the Four-
teenth Amendment" (p. 107), and that it consti-
tuted "a transfer by statute of control over
churches" (p. 110). Later, in the concluding and
determinative portion of the opinion entitled
"Legislative Power", he rejected our conclusion
as to "legislative power over religious organiza-
tions" (pp. 117, 118), he distinguished the Ameri-
can Communications Assn. v. Douds case (339
U. S. 382) (pp. 118, 119) and repeatedly returned
to the theme that the statute in question, article
5-C, was beyond the legislative power of the State
of New York and violated the Constitution rule
against prohibition of the free exercise of religion
(pp. 120, 121).
Thus, we feel that the Supreme Court, in its
decision, did not determine the constitutional va-
lidity of the alternative common-law disposition
of the case previously announced by this court,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
viz., that, apart from the statute, a new trial would
be ordered so that our State Supreme Court, under
proper instructions, might ascertain all the facts
of the controversy and render appropriate find-
ings and exercise of discretion thereon,.
Accordingly, we adhere to our prior decision,
apart from the statute, to order a new trial upon
the issues here involved. Since we have previ-
ously, publicly and categorically expressed our
considered conclusion, that such action would be
required in the absence of the statute, and since
the statute has been expunged from the case, it
would be unreasonable to take a different posi-
tion now, unless we were compelled to do so by
the action of the Supreme Court. We have al-
ready shown that the actual decision of that court
relates solely and exclusively to the constitutional
validity of article 5-C and does not, in terms,
affect our conclusions on the nonstatutory aspect
of the controversy. Mr. Justice REED, however,
did include in his opinion an extended discussion
(pp. 110-116) of the case of Watson v. Jones (13
Wall. [U. S.] 679, supra) which introduced into
the law of America the principle that in a cen-
tral, denominational or hierarchal church, the de-
cision of the highest church authority or tribunal,
will be accepted as final and conclusive by the
civil courts. He conceded that the principle, as
announced, was not a constitutional pronounce-
ment, and could not have been (p. 115). He con-
tinued with the comment that (p. 1-16): The opinion radiates, however, a spirit of free-
dom for religious organizations, an independence
from secular control or manipulation-in short,
power to decide for themselves, free from state
interference, matters of church government as
well as those of faith and doctrine. Freedom to
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
select the clergy, where no improper methods of
choice are proven, we think, must now be said to
have federal constitutional protection as a part
of the free exercise of religion against state inter-
f erence. "
It can hardly be said that this passing comment,
unnecessary to the actual decision of the court
upon the validity of article 5-C, has the effect of
elevating the rule of Watson v. Jones (supra) to
the dignity of a constitutional mandate binding
upon all the courts of the land. There is no indi-
cation that the Supreme Court, by its decision
herein, intended to make a pronouncement of such
major proportions.
Nevertheless, whether Watson v. Jones (supra)
be viewed as a common-law or constitutional rule,
there is still some area in which the civil courts
can and must operate in controversies submitted
for adjudication. Justice REED himself implied as
much with his qualification that the rule is opera-
tive only "where no improper methods of choice
are proven" in the selection of the clergy, of
whom, of course, Benjamin is one.
Whatever other limitations have been or will be
placed upon the rule of Watson v. Jones (supra),
there is one basic qualification to its application.
That is that the highest church authority or tri-
bunal, whose decision is to be accorded final and
conclusive effect, must in truth and fact be capable
of functioning freely with its activities directed
by churchmen in the interests of the church and
in accordance with the organic law of the church.
In other words, where a property right turns upon
a decision of the church authority, the civil court
is Linder a duty, if such issue is raised, to ascer-
taln W118tl1er the purported authority is duly
constituted and functioning. The court is not
required, without investigation and in unques-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
II
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
tioning obedience to a legal formula, to give con-
clusive effect to the determinations of any group
which purports to exercise authority, particularly
as against the contention that the claimed au-
thority is being subverted to secular and irre-
ligious ends.
In the instant case as we noted in our original
opinion (302 N. Y., at p. 22) : "We know that
a nominal church organization exists in Russia,
but that is not enough", in view of the position
steadfastly maintained by the plaintiff that the
central church authority "has been absorbed by
the Russian Government and its action deprived,
during the period of such domination, of any re-
ligious significance." (P. 24.) To reject the
claim of the plaintiff in this regard, without hear-
ing and weighing all the evidence, would be
grossly unjust and would constitute an infringe-
ment of their right to free exercise of religion.
Uncritical acceptance of the principle of Watson
v. Jones (supra) without qualification, as to "im-
proper methods of choice" of clergy (344 U. S.,
at p. 116) under the circumstances here involved,
does not advance the end of religious liberty but
rather retards it, for in effect the court would be
requiring the communicants of the metropolitan
district to acknowledge the administrative rule of
persons whom they believe are mere puppets of
a monolithic and atheistic secular power, if such
communicants wish to continue to use the religious
temporalities they have so long enjoyed.
With respect to the new trial now to be had,
there can be no doubt that the plaintiff corpora-
tion which holds title to the cathedral premises is
entitled to possession thereof. Likewise, we think,
there can be no doubt that the trustees of the cor-
poration, who are now members of the North
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
American metropolitan district, are charged with
the duty of caring for and maintaining the
property. There is also no doubt that the said
trustees must administer these temporalities in
accordance with and subject to the "denomina-
tional" usage whatever that may be held to be,
and for the beneficiaries for whom the trust was
originally created.
Section 5 of the Religious Corporations Law
provides that the "trustees of every religious cor-
poration shall have the custody and control of all
the temporalities and property, real and per-
sonal, belonging to the corporation and of the
revenues therefrom, and shall administer the same
in accordance with the discipline, rules and usages
of the corporation and of the ecclesiastical govern-
ing body, if any, to which the corporation is
subject * * *
For the purpose of the case at bar, the question
of the proper administration of the cathedral
trust by the trustees of the plaintiff corporation
comes down to which of two clerics-Leonty or
Benjamin--is to be put into possession of the
edifice.
A line of cases in this court supports the propo-
sition that the civil courts of this State have juris-
diction in equity to inquire into and determine
whether trustees of a religious corporation own-
ing realty are properly administering the real
property in accordance with the terms of the trust.
We stated in Westminster Presbyt. Church v.
Trustees of Presbytery of N. P. (211 N. Y. 214,
224-225) : "Upon the trial of the action the plain-
tiff proved all the facts necessary to make out a
prima facie case in ejectment. It proved title,
possession and ouster by the defendant. * * * The
plaintiff having legal title to the property was
entitled to the possession thereof so far as
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
176
appeared from any evidence properly in the
record. If, as the defendant asserts, the trustees
of the plaintiff corporation are not administering
the property in accordance with denominational
usage, the Presbytery [defendant] has an ade-
quate remedy in equity to compel them to do so
This principle of civil jurisdiction to review the
administration of religious trusts was mentioned
again in Trustees of Presbytery of N. Y. v.
Westminster Presbyt. Church (222 N. Y. 305, 318,
supra), and again, in the above-noted case of
Kedrovsky v. Russian Catholic Church (249 N. Y.
75, 77-78) a prior litigation affecting the cathedral
and similar issues. In the latter case, we stated
(pp. 77-78) : "In view of the dissensions that have
arisen, the Supreme Court may well conclude that
the title should be vested in some other trustee
who may be relied upon to carry out more effec-
tively and faithfully the purposes of this religious
trust (Carrier v. Carrier, 226 N. Y. 114)."
In the case at bar, it appears obvious that the
cathedral was dedicated for the use and benefit of
the faithful in the old North American Diocese of
the Russian Orthodox Church. Prior to the death
of Patriarch Tikhon, the last Patriarch who had
unquestionable authority in every respect, the
proper administration of the trust demanded that
the trustees permit the cathedral to be occupied
and governed by the appointee of the Patriarch.
But, in view of the undeniable break in the patri-
archal succession and the virtual extinction of the
Patriarchate after the Bolshevik revolution, in
view of the patriarchal ukase of 1920, the circum-
stances under which it was issued and the crea-
tion of the North American metropolitan district
in reliance thereon, in view of the strong proba-
bility that the Patriarchate, though nominally re-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
established, cannot function except as. an arm or
agent of an antireligious civil government, in view
of what appears to be the overwhelming adherence
of the faithful in America to the clergy of the
metropolitan district rather than to the new dio-
cese organized by Benjamin; in view of all this,
it is incumbent upon the courts of this State to
move cautiously and carefully in this difficult
field, to gather all the evidence possible, to enter-
tain the views of expert church scholars, to ana-
lyze the available documents and the canon law,
to make findings of fact and to exercise sound dis-
cretion thereon, building up a record which is
suitable for intelligent review and adjudication by
the appellate courts.
The action of the court, based upon appearances
rather than facts which were then difficult to ascer-
tain, and based upon a conventional legal formula
uncritically accepted without reappraisal in the
light of special circumstances, resulted in a judg-
ment in 1926 which led to the occupancy of the
cathedral for over twenty years by persons who
had no right to be there, a fact which is now con-
ceded by both parties. It would be most unfortu-
nate if this court, with so graphic a warning at
hand, permitted such a mistake to occur again.
Moreover, since the public policy of the State of
New York with respect to this controversy was
so strongly pronounced in 1945 and 1948, there is
some obligation, we think, upon the courts of this
State to attempt, if at all possible within the
framework of legal rules, statutes and the Consti-
tution, to finally adjudicate in our State courts the
questions posed by this litigation so that we may
determine them under State decisional law as the
United States Supreme Court hoped could be done
when it ordered reargument and which it was pre-
vented from doing because of our "unequivocal
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
remittitur' I which. had been amended at the re-
quest of the defendants so as to enable them to
test out in the Supreme Court the constitution-
ality of our State statute as distinguished from
our State decisional law (302 N. Y. 689).
In this connection, as bearing upon our settled
public policy in passing the legislation of 1945
and 1948, and as confirmation of the interpreta-
tion which the majority of this court placed upon
such legislation, we note the letter of Governor
Thomas E. Dewey, dated December 22, 1950, to
Archbishop Leonty of the North American metro-
politan district, which appears in plaintiff's brief
in the Supreme Court of the United States but
which was not submitted to us on the appeal here.
In that letter, Governor Dewey stated :
`I have your gracious telegram conveying
greetings from the Eighth All American Sobor
of Russian Orthodox Greek Catholic Church of
North America. I was happy to be able to sign
the Acts of the New York State Legislature in:
1945 and 1948 which confirmed the members of the
Russian Orthodox Greek Catholic Church in the
possession of Saint Nicholas Cathedral in New
York City, thus freeing it from the evil and sac-
rilegious influence of representatives of the
Soviet.
"I join you in looking forward to the time
when all worshippers of the Orthodox Greek
Church in the. world will be free from the clutches
of the Soviet Government.
Sincerely yours,
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
The motion to amend the remittitur should be
granted to the extent that a new trial is ordered
and the case should be remitted to the Supreme
Court, New York County, for trial in accordance
with the opinion herein.
DESMOIQD, J. (dissenting). We dissent. Our
authority is the clear, positive and binding pro-
nouncement, by the United States Supreme Court,
in its opinion in this very case, of the law of this
identical controversy (Kedroff v. St. Nicholas
Cathedral, 344 U. S. 94). The sole question in the
litigation was, and is, this : May intervening de-
fendant Fedchenkoff, holder of an admittedly
valid appointment by the Patriarch of Moscow,
world head of the Russian Orthodox Church, as
archbishop of the North American Diocese,. be
prevented by the State of New York from occupy-
ing as his see church the archdiocesan cathedral
in New York City This court, when the case was
here before (St. Nicholas Cathedral v. Kedroff,
302 N. Y. 1) barred the archbishop from the
cathedral, and decreed possession thereof to the
Russian church in America, a separatist move-
ment. This court's reliance for that holding was
on article 5-C of the New York Religious Corpo-
rations Law, judically construed. as transferring
the cathedral from control by the mother church
in Russia, to control by the "American Church",
on a supposed legislative determination that the
Moscow Patriarchate was a mere instrumentality
of the Communist regime in the U. S. S. R., and
so incapable of carrying out the religious trust.
But the United States Supreme Court, reaffirm-
ing Watson v. Jones (13 Wall. [U. S.] 679) held
flatly that the Watson. rule gave. constitutional
protection, under the First Amendment, to the
filling of ecclesiastical offices by the appointive
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
power of the church (see Gonzalez v. Archbishop
of Manila, 280 U. S. 1).
The Watson v. Jones (supra) formulation of a
fundamental American doctrine of religious free-
dom (old in New York, see Connitt v. Reformed
Prot. Dutch Church of New Prospect, 54 N. Y.
551) is simply this : that, as to a subordinate body
of a general church organization, the civil courts
must accept, as finally binding, the decisions of
the supreme judicatory of the general organiza-
tion in all matters of discipline or belief, or eccle-
siastical custom or law. Since, said the Supreme
Court in its opinion in our case, the Russian
Orthodox Church is hierarchical in government,
the power to appoint, and the choice of, its arch-
bishops is a matter of ecclesiastical government,
as is the right of that appointee, as such, to occupy
the cathedral. Therefore, the question sought
to be litigated in this suit was one with which the
civil courts had nothing whatever to do. Any
State interference with such choice of a prelate,
or such occupancy, would be violative of freedom
of religion under the Federal Constitution. The
Supreme Court, therefore, reversing this court's
reversal of the lower New York courts, sent the
case back to us for further proceedings "not in
contravention of" (344 U. S., p. 121) the Supreme
Court's opinion. Since the sole purpose of the
suit was to obtain an adjudication, contrary to
that of the Orthodox Church's highest judicatory,
on a pure question of ecclesiastical government
and discipline, the only possible consistent course
for this court to take, after that reversal, was to
order the complaint dismissed. Instead, action
most inconsistent is being ordered, in the form of
a trial as to the motivations of the Patriarch of
Moscow, and as to the qualifications of Arch-
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
181
bishop Fedchenkoff. The ordering or holding of
such a trial, or any determination therein, either
way, on either of the two questions, has been
banned in advance, we say, by the Supreme Court,
as an unconstitutional intrusion by the State of
New York into the inner affairs of a church. Actu-
ally, the interference in this, its second form, is
more to be condemned than was the first attempt.
Our first decision here was based on a New York
statute and, perhaps, there was some duty in the
New York courts to try to salvage that statute.
Yet, now that the statute has been stricken down
as unconstitutional, we are licensing a trial in a
civil court to find a fact which, if found, could be
no basis for any constitutionally valid judgment.
If unconstitutionality under the First Amend-
ment were not so plain here, we would state more
fully the impropriety, as a matter of New York
practice, of ordering a new trial, on this record.
Here, we are told, there are two fact issues to be
tried : as to the domination of the Patriarch by
the Kremlin, and as to the fitness of his archiepis-
copal appointee. But, at the first trial, plaintiff
frankly conceded in open court that it could never
hope to prove the "domination" by common-law
evidence, and asked, instead, that judicial notice
be taken. After this court gave plaintiff judg-
ment on an assumption that the Legislature had
acted on knowledge of that supposed fact of patri-
archal subjection to the communists, the United
States Supreme Court said that, even if such were
the fact, State action based thereon could not be
valid, in an ecclesiastical matter. So, the trial we
are ordering, insofar as it concerns the workings
of the Patriarch's mind and the purity of his mo-
tives, is unjustified by the record, and, by conces-
sion, foreordained to futility. As to any question
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
of the fitness of the intervening defendant for the
archbishopric, no such contention was made at the
first trial.
Pressed on us now as some sort of authority for
this new trial order are Kedrovsky v. Rojdesven-
sky (242 N. Y. 547) and Kedrovsky v. Russian
Catholic Church (249 N. Y. 75). If either of those
decisions deny the right of the Patriarch of Mos=
cow to appoint the archbishop of New York, then
they were overruled on November 24, 1952 (344
U. S. 94, supra). The long and short of it is that
the order which this court now hands down vio-
lates not only the Supreme Court's mandate, and
the First Amendment, but long and thoroughly
settled New York law (Jarvis v. Hatheway, 3
Johns. 180 [1808]; Diefendorf v. Reformed
Calvinist Church, 20 Johns. 12 [1822] ; Dutch
Church in Albany v. Bradford, 8 Cow. 457
[1826] ; Connitt v. Reformed Prot. Dutch Church
of New Prospect, 54 N.. Y. 551 [1874], supra).
And those old cases of ours were in the direct line
of descent from fundamental American thought
much older than the Constitution itself (vide,
Roger Williams in the seventeenth century : I I The
government of the civill Magistrate extendeth no
further than over the bodies and goods of their
subjects, not over their soules, and therefore they
may not undertake to give Lawes unto the soules
and consciences of men" quoted in Rossiter's
Seedtime of the Republic [1953], p. 197).
The complaint should be dismissed.
LEwis, Ch. J., DYE FROESSEL, JJ., concur
with CONWAY, J.: DESMOND, J., dissents in opin-
ion in which FuLD, J., concurs ; VAN Voonxis, J.,
taking no part.
Motion granted, etc. [See 306 N. Y. 572.]
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
 Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9
183
346 U. S. 893
No. 235, Misc. ex parte Kedroff, et at. Motion
for leave to file petition for writ of mandamus
denied. Mr. Justice BLACK and Mr. Justice
DOUGLAS would issue a rule to show cause why
leave to file should not be granted. Philip Adler
for petitioners.
Approved For Release 2000/08/26 : CIA-RDP60-00442R000100110003-9