Close v. Kjelgaard ( 1898 )

Per Curiam:

The plaintiff is one of the board of trustees of the First Free Will Baptist Church of the city of Rew York. In his capacity as trustee he has brought an action against the pastor, two others of the trustees and the church to cancel the contract of the defendant Kjelgaard with the church as its pastor, to procure the appointment of a receiver of money now in the hands of the trustees, and to obtain an injunction restraining the defendants from disposing of that sum of money, or from interfering with or disposing of any other property of the church which the defendants now have or which may come into their hands. An injunction was granted restraining the defendants from interferring or meddling with or making any disposition of the proceeds of the property of the church, and from the order granting that injunction this appeal is taken. The ground for the injunction evidently is that it appears by the papers that the - defendants are wasting, or are likely to waste, the property of the church which shall come into their hands, and it is alleged in general terms in the complaint that they are about to use and dissipate that property, and that they are engaged in a conspiracy to obtain the possession of the funds of the church and to appropriate them to their personal use The allegations in the complaint are very general, and the proof to sustain them in the affidavits submitted is not much more definite. It is stated that there .has come into the hands of the defendants the sum of $650, being interest money due to the said church, and that they have refused to pay it over to one Barnaby, who claims to be the treasurer of the church. This is the only specific allegation contained in the papers produced by the plaintiff ■as'to the waste of any property of the church, although there are general statements that the individual defendants are dissipating its assets. It is made to appear by the affidavits submitted on the part of the defendants that Barnaby is not the treasurer of the church, but he is the treasurer of the board of trustees, and that another person than he has been- elected treasurer by the congregation. All allegations in the complaint tending to show that the defendants have misappropriated or are wasting any of the funds of the church are particularly denied ; and with regard to the sum of $650 it is stated that $500 of it had been paid over to apply upon the salary of the pastor,-and $50 to another person who officiated in the church in his absence, and the remainder is now in the possession of .the person to whom it was paid and by whom it is held by authority of the church. All of the allegations tending ■ to show that there has been any waste of misappropriation of the property of the church are met and denied by the defendants, and there seems to have been no ground for the granting of this injunction.

The order granting the injunction must, therefore, be reversed, with ten dollars costs and disbursements, and;the motion to continue it denied, with ten dollars costs to abide the event.

Present — Van Brunt, P. J., Barrett, Rumsey, Patterson and O’Brien, JJ.

Order reversed, with ten dollars, costs and disbursements, and motion denied, with ten dollars costs to abide event.