FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. office of the clerk of the county of New York on the 4th day of December, 1897, upon the decision of the court rendered after a trial at the New York Special Term. Abram I. Elkus for the appellant. George M. Van Hoesen, for the respondent. VAN BRUNT, P. J. : This action was brought to compel the defendant to convey to the plaintiff certain real estate. The plaintiff is a religious corporation organized on the 5th of June, 1884, as a Roman Catholic church, under chapter 60 of the Laws of 1813 (2 R. L. 212), and chapter 45 of the Laws of 1863. The defendant is a corporation and was organized on the 3d of June, 1878, under the act of April 12, 1848 (Chap. 319), for the furtherance of religious opinion, etc. The plaintiff had existed as an unincorporated religious society from 1873 down to the date of the incorporation in 1884, and had worshipped in various churches prior to 1877. At that time the priest of the society, desirous of obtaining a place of worship of its own for the society, made an appeal to the congregation for contributions towards the purchase of a building. A considerable sum was advanced, in respect to some of which advances it was the understanding that the lenders should get their money back; and a committee was appointed to look for a church building. The committee selected a building, and thereupon application was made to the cardinal archbishop of New York for leave to incorporate the society and to purchase the building selected. The cardinal refused his permission, and plans were devised for the purpose of circumventing him and of buying the property for the congregation without his leave. Accordingly, the defendant was organized, composed of members of the congregation, the first payment upon the property was made by money raised by the congregation as above mentioned, and a conveyance of the property was made to the defendant. After the organization of the defendant, certain by-laws appear to have been adopted, section 10 of which provides as follows: "The time for the existence of the society is not prescribed, but it shall exist until the church or parish of St. Stanislaus decides to make a change; such a change, however, App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. can only be made when the parish will be able to pay the monies loaned by the members of the society." The congregation immediately took possession of the property, made alterations, paid the expenses of those alterations, made whatever repairs were needed from time to time, paid the interest on the mortgages, repaid to members of the defendant the sums which they had loaned or advanced for the purchase of the property, and in fact had such complete control and management of the property that those persons who became connected with the society subsequent to the purchase of the property never heard of the connection of the defendant therewith, and supposed that the title was in the church corporation. The defendant had no meetings of trustees or members, transacted no business, and gave no signs of life until in 1892, when the priest who was in charge of the congregation undertook to raise money by mortgaging the church property, and it was revealed that the title stood in the name of the defendant. Soon after this, some of the members of the defendant conceived the idea of claiming the land and church building as its property. After many negotiations in reference to the matter, this action was brought. The court below gave judgment in favor of the plaintiff, and from that judgment this appeal is taken. The defendant substantially concedes the plaintiff's case, but relies upon the statute (1 R. S. 728, § 51) to defeat its claim; and has complied as far as possible with the requirements indicated in the case of Haigh v. Kaye (L. R. [7 Ch. App.] 469), where the court say: "If a defendant means to say that he claims to hold property given to him for an immoral purpose in violation of all honour and honesty, he must say so in plain terms and must clearly put forward his own scoundrelism if he means to reap the benefit of it." In the case at bar, notwithstanding the evident attempt of the present members of the defendant to cheat, defraud and steal from the plaintiff that which rightfully belongs to it, we think that that which is justly characterized in the case cited as their scoundrelisin cannot succeed. It seems to be a well-settled rule of law in this State that unless it appears that the person paying the consideration has consented to an unconditional and absolute conveyance of the property to another without any recognition or intimation in respect to his rights, the FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. statute in question will not protect the attempted fraud; and it is further held that no presumption can be indulged in to support such a defense. (Schultze v. Mayor, 103 N. Y. 311.) Applying this principle to the case at bar, there is no evidence that this conveyance was understood by the unincorporated society to have been taken by the defendant unconditionally and without any recognition of their ultimate rights. In fact the acts of all the parties indicate the contrary. From the very moment of the conveyance down to 1892, when the discovery was made that the title stood in the name of the defendant, the plaintiff acted as the owner, had possession and use of the property, paying incumbrances, and paying off moneys which had been loaned by members to effect its purchase, the defendant giving no signs of existence during all this period, and only exhibiting life when some of its members became actuated with the highly moral purpose of stealing this property from its true owners. And, furthermore, there is, we think, in the by-laws above quoted, an express recognition by the defendant of the equitable right of the plaintiff to a conveyance of this property whenever it desired to obtain the same. It is urged that these by-laws were not sufficiently proved. It is difficult to see how better proof of their authenticity could have been given. One of the original incorporators and original trustees of the defendant identified them as the by-laws of the defendant; they are signed by all the trustees and by all the incorporators except two, and these signatures are proven by the witnesses; they purport to be the by-laws of this defendant; and this evidence is in no way challenged, the objection to their admission being that there was no sufficient evidence that they are the adopted by-laws of the defendant corporation. It is difficult to see how more convincing evidence of their authenticity could have been given. It is further apparent that this conveyance was not understood to be an absolute conveyance to the defendant, but partially as security for the money loaned by the members of the defendant to effectuate the purchase, not only from the language of the by-laws, but from the fact that the members of the defendant and the plaintiff understood that the latter was under obligation to repay the moneys loaned by the former for the purchase of the property. What interest had the plaintiff in repaying the moneys advanced by the App. Div ] FIRST DEPARTMENT, JUNE TERM, 1898. members of the defendant if the property was understood to belong to the defendant? There were other exceptions to the reception of evidence, some of which were well taken; but such evidence in no way harmed the defendant, in that the facts above stated, and upon which the judg ment of the court proceeded, were established by undisputed evidence which it was in no way attempted to contradict. We are of opinion that the court below was entirely justified in the conclusion to which it came, and that the judgment appealed from should be affirmed, with costs. PATTERSON, O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ., con curred. Judgment affirmed, with costs. CHARLES H. LEONARD and JOHN H. McCoy, Respondents, v. THE BANK OF THE METROPOLIS, Respondent, e. EBERHARD FABER, Appellant. HOLMES, BOOTH & HAYDENS, Respondent, v. EBERHARD FABER, Appellant. First judicial department — notice of trial must be for same term as note of issue — a note of issue, filed before last pleading is served, is ineffective. In the first judicial department a notice of trial must be given for that term for which the note of issue is filed, and the attorneys in an action have no power by stipulation to provide that a note of issue, filed before the last pleading has been served, shall be effective to place such cause on the calendar without the filing of a new note of issue. APPEAL by Eberhard Faber, the defendant in each of the aboveentitled actions, from three orders of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 11th day of May, 1898, denying the defendant's motion to strike each of the above-entitled actions from the Trial Term calendar. 31 137 38 110 FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. Francis Forbes, for the appellant. George Rosendale, for the respondents. PER CURIAM: These are appeals from orders denying the defendant's motions to strike these cases from the Trial Term calendar. The application in each case was made upon the same ground, namely, that the note of issue was for a different term than that for which the case was noticed for trial. That the substantial facts upon which the motions were based are true appears in the papers before us. Notes of issue were filed by the plaintiffs in cach case on December 14, 1896, and each was noticed for trial for the January term, 1897. Thereafter the plaintiffs demurred to certain affirmative defenses set up in the answers of the defendant. The issues of law arising on such demurrers were heard at the Special Term and decided on July 19, 1897. The demurrers were sustained and the defendant was permitted to answer over on the payment of costs. He availed himself of that permission and served amended answers on the 6th of August, 1897. No new notes of issue were filed, but it would appear that both parties afterwards served notices of trial for the Trial Term. It further appears that on the 8th of September, 1897, a stipulation signed by the plaintiffs' attorney and purporting to be signed by the then defendant's attorneys, was made in the following words: "It is stipulated that no new note of issue need be filed in the above-entitled actions or any of them. This is to save the plaintiffs the four dollars clerk fee in each case on filing such note of issue." On the decision of these motions at the Special Term the court regarded the stipulations as conclusive of the merits of the motions. It was strongly urged that the stipulations were not signed by the attorneys representing the defendant at the date thereof, but the court held that the plaintiffs' attorney was justified in relying upon them. It is not necessary to pass upon the genuineness of the defendant's attorneys' signature to the stipulation. The ground upon which the motions were based was established, and the causes should have been stricken from the calendar. The issues of fact were joined by the amended answers in August, 1897. The issues were then fixed and the place of the cases upon the calendar determined. It was held |