Trustees of the Reformed Protestant Dutch Church v. Hardenbergh

This is an action brought to recover of the defendant $250, on the following paper: “We, the undersigned, do hereby, for value received, promise to pay to the consistory of the Reformed Protestant Dutch Church of the town of Rochester the several sums set opposite our respective names, for the purpose of paying off the indebtedness of said church, on condition that the sum of $5,000 be subscribed therefor. Dated January 28, 1868.”

The answer is a general denial, and that the agreement was without consideration. This paper was signed by the defendant and others, and on the face of the paper there appears to have been $5,185 subscribed in all, of which $495 was subscribed after defendant’s subscription was made.

The plaintiffs prove that defendant subscribed $250 and said he would pay that, and would not subscribe $500. They also were permitted to prove (under defendant’s objection) subscriptions, by proving payments, and to prove payments by proving that the credits for payments were in the. handwriting of John B. Van Leuven, deceased, formerly treasurer of the church; and they also proved that “ the cash amount of moneys received corresponded with the subscription list.” To all of which defendant objected.

They were also permitted to prove that the indebtedness resting on the church was for repairs theretofore put upon the church and parsonage under the supervision of the defendant, as one of a committee appointed by the church for that *425purpose. To this evidence defendant objected. There were four witnesses called by the plaintiffs, who prove subscriptions in the aggregate to the amount of $6,823, exclusive of defendant’s ; but of this aggregate the subscriptions of C. Kortright, $500; L. Krom, $500; M. Kortright, $500; J. B.Van Leuven, $500; S. D. Baker, $300; B. K. Hoornbeck, $50, and Joseph Markle, $75, amounting in all to $2,425, is sworn to by both C. Kortright and L. Krom; and the amounts proved by Duryea and Schoonmaker are also included in the lists of both Krom and Kortright, thus leaving only the amount of $4,398, or, including defendant’s subscription, $4,648, proved to have been at any time subscribed. There is not the slightest proof or pretense of proof that $5,000, including defendant’s subscription, had been subscribed at the time of the commencement of this action. The whole amount proved to have been paid is $4,926.74, of which $371.44 is for interest, or does not appear on the subscription paper, leaving but $4,555.30 proved in this manner; or, including the defendant’s subscription, $4,805.30. There is nowhere any evidence that “The consistory of the Reformed Protestant Dutch Church of the town of Rochester” and the plaintiffs are the same body, or represent the same religious corporation. It nowhere appears that there are not two religious bodies bearing these several names. This point was raised by the defendant on the trial.

It nowhere appears that the persons who circulated the paper were trustees of the church, or the members of any consistory, except that it does appear that John B. Van Leuven was treasurer, and that he is dead. There was no evidence that the plaintiffs, or “ the consistory,” agreed to use the money in the payment of the debt, or that they have so used the moneys collected. It was shown that there was no consideration whatever for defendant’s promise, unless the circulation of the subscription by Krom, Kortright and Van Leuven shall be held sufficient; and they, so far as the case shows, circulated it without authority.

*426I. The plaintiffs cannot recover, because they have proved no subscription to them or for their benefit. The subscription was to pay to “ the consistory,” and not to “ the trustees; ” and there is nothing unreasonable in the supposition that there are two churches in Rochester bearing these respective titles, and nothing to show to the contrary in the evidence. And it was for the plaintiffs to show that they were meant by the terms used in the subscription paper. It was a part of their affirmative case.

II. The condition on which the subscription was to become binding has not been performed. The $5,000 is not show» to have been subscribed at all; certainly not before the commencement of the action. And if it had, that was not sufficient consideration to support the promise (Trustees Ham. Col. agt. Stewart, 1 N. Y., 581; Barnes agt. Perrine, 12 N. Y., 30, 31).

III. The words “ for value ” in the paper may be contradicted, and in this case have been (Pearson agt. Pearson, 7 Johns., 26; Schoonmaker agt. Roosa, 17 Johns., 304; Fowler agt. Shearer, 7 Mass., 14; Boutell agt. Cowdin, 9 Mass., 254; Harris agt. Clark, 3 N. Y., 93).

IV. ' There was no consideration for defendant’s promise (Hammond agt. Shepard, 40 How., 452; Trustees Ham. Col. agt. Stewart, 1 N. Y., 581; Barnes agt. Perrine, 12 N. Y., 18 ; Phillips Limerick Academy agt. Davis, 11 Mass., 113; Trustees, &c., agt. Gilbert, 2 Pick., 579; Wilson agt. Baptist Ed. Soc., 10 Barb., 314, 315; Richmondville Union Sem. agt. McDonald, 34 N. Y., 381; Van Rensselaer agt. Aikin, 44 N. Y., 130).

V. A new trial should be granted, with costs, to abide the event.

Note.—The general term, on motion made by defendant, refused leave to go to the court of appeals.