majority">By the Court.—Hogeboom, J.

This action is brought to require the defendants to pay the sum of $3,000, and interest, to the treasurer of the American and Foreign Christian Union, to be by him applied to such charitable uses and purposes as were directed in the will of the defendant’s testator, or if such treasurer is not the proper person to receive the same, then to some suitable and proper person, to be appointed by the court as trustee, to receive the said fund, and to apply the same to and for the charitable uses and purposes set forth in the constitution of the Ameri*469can Protestant Society, and according to the last will and testament of Peter Chandler, deceased, under the direction of the American and Foreign Christian Union.

This is the prayer of the complaint, and the evident object of the suit. It was founded upon the will of Peter Chandler, late of Oswego county, deceased, dated the 30th day of November, 1847, and who died on or about the first day of January, 1848. That will contained the following clause :

“I give and bequeath to my executors the sum of three thousand dollars in trust, to pay over the same in six years from my decease, with interest after one year from my decease, to the person who, when the same is payable, shall act as treasurer of the American Protestant Society, reorganized in the city of Hew York under its present name in the year 1844, to be applied to the charitable uses and purposes of said society and under its directions.”

The defendants refused to pay this legacy, and object to the recovery in this suit mainly on the following grounds: 1. That the American and Foreign Christian Union is not the society for whose benefit and to whose charitable uses and purposes the legacy was given, nor the legitimate successor of its name, principles, or objects. 2. That if it were, it has not such an interest in the legacy as would entitle it to maintain this action, and that additional or other parties are essential for that purpose. 3. That the plaintiff, as the president of that society, is not authorized to sue in his own name, as the representative. 4. That the legacy, if payable at all, is payable only to the treasurer of the institution to whom or which the legacy was given. 5. That the administration of the fund can only be enforced at the suit of the attorney-general, or some trustee to be appointed by the court in the place of one named in the will, whose office has become extinct, and whose functions have ceased by the extinction of the society named in the will.

1. Although the American and Foreign Christian Union is not the identical society, either in name or constitution, for the charitable uses and purposes of which the gift was intended, I am of opinion that it sufficiently represents it to be the recipient of the testator’s bounty, and that the testator himself, if he could have foreseen the change of name which the American Protestant Society has undergone, and the enlargement of the *470sphere of operations carried on under the auspices of the new society, would not have diverted the destination of his charity from the association now represented by the plaintiff. The original society has become extinct, or rather has been absorbed in the society which is now in existence. The essential objects and policy of both are nearly identical, except that the sphere of operations of the first was confined to the United States, while that of the latter extends also to foreign nations. It would be the duty of the present society, if they receive this gift, to devote it sacredly to the purposes designed by the giver, and there is no reason to doubt that such is their intention, as it is declared to be their wish by the prayer of the complaint; and I am not sure that they would be beyond the power of this court, if they should attempt hereafter in any way to divert it from the purpose to which it was dedicated by the testator.

2. The American Foreign Christian Union (supposing it to be identical with the American Protestant Society) has certainly a species of interest in the legacy in question—the same, interest which all religious, benevolent, and charitable institutions have in funds intrusted to them for benevolent objects. It is not a personal interest, that is, a pecuniary interest, by which the society or its stockholders are to be pecuniarily benefited, hut an interest in the sense of holding it as a trust, and disbursing and administering it to accomplish the objects of the donor, and the ends for which the society itself is instituted. In this respect it is the ultimate donee of the fund, as well as the trustee to accomplish these objects, for there are no beneficiaries beyond or behind it who have such an interest in the fund that they can demand any portion of it to be. appropriated for their special benefit. I think, therefore, if the gift had been directly to this society, or, assuming its identity with the American Protestant Society, directly to the latter, that it would have had a sufficient interest in the fund, conceding its competency to take such gift, to have invoked the aid of this court in requiring its payment to them.

3. And if the gift had been thus made, I think we must hold, in accordance with the general-term decision in Tibbetts a. Blood (21 Barb., 650),—construing the act of 1849 (ch. 258), authorizing joint-stock companies or associations, consisting of seven or more shareholders or associates, to sue in the name of *471their president or treasurer, as amended by chap. 455 of the Laws of 1851, extending the provisions of the former act to “ any company or association composed of not less than seven persons who are owners of or have any interest in any property, right of action, or demand, jointly or in common,”—that this suit would have been well brought in the name of the present plaintiff as president of the American and Foreign Christian Union. Some doubt has been thrown upon the- construction of this latter act, and the extent to which its provisions shall be carried, by the opinion of Justice Shankland in the Court of Appeals, in the case of Austin a. Searing (16 N. Y., 116), but the, court expressly declined to pass upon that question, and we are therefore thrown back upon the case of Tibbetts a. Blood, and, in accordance with the general rule, to recognize as authority a general-term decision of this court in another district, until reversed in the Court of Appeals, we must hold in accordance with that decision.

4. It seems to me that the appropriate person, and perhaps the only appropriate person to prosecute for this legacy, is the treasurer of the American Protestant Society—or, if that society and officer have become extinct, his successor (if he be such), the treasurer of the American and Foreign Christian Union. It is to him, and only to him, that the legacy-is given, or the legacy made payable, not for his own use, it is true, but for the purposes of the society of which he is an officer. Is there any doubt that if the original society had contimted, and its corps of officers been maintained, that this'officer could have enforced the payment to him of the legacy as against the executors of the estate, in the Surrogate’s. Court, or in the Supreme Court ?

I think it clear also that the legacy vested at the testator’s death, and that the time of payment only was postponed. The gift is a present one, at least to the executors, and from the time they hold it, they hold it as trustees for, and for the benefit of, the officer of institution to whom it is payable. Such was the evident intent of the testator, and it ought not to be defeated. It did not fail, therefore, by the demise of the original society, or its absorption into the present association, before the time of payment arrived; but the executors still retain it for the benefit of the legitimate successor of the treasurer named in the will, and to such successor the executors may, by the aid of this *472court, be compelled to pay it. But such payment must be enforced, I think, by such officer himself, prosecuting on his own behalf. It would be an anomaly in the law to sustain a suit by one person, to enforce payment, not to himself, but to a third-person. The party has not a standing in court for such purpose. The suit should be brought by the real party in interest, or by the party who occupies the position of the trustee of an express trust for others.

I think, therefore, the action is misconceived, and that this is an objection which need not be taken by demurrer, or by answer; but may be taken on the trial, on the ground that neither the complaint nor proof shows facts sufficient to constitute a cause of action, that is (and it is that which the Code means), a cause of action in favor of the plaintiff against the defendants.

5. hi or do I think this suit can, or, in its present condition, ought to be sustained as a proceeding for the appointment of a new trustee. Such was not the nature or intent of the action, nor such the theory upon which it has been prosecuted. No such question was made or considered upon the trial, nor is the issue adapted to such an object. The usual mode of appointing a new trustee is by petition, though perhaps it may be appropriately done by bill. (1 Rev. Stat., 730.) But the allegations on the bill, and the prayer for relief, should be properly phrased directly to compass that object, whereas the palpable object of the present suit is to show that the institution represented by the plaintiff is the legitimate successor and representative of the American Protestant Society; that as such, it is beneficially entitled to the legacy in question, and therefore seeks to enforce the payment thereof with costs against recusant defendants who refuse to pay the same. The appointment of a trustee is incidentally suggested, it is true, in the prayer for relief as the proposed recipient of the fund, in case the court shall conclude that the treasurer of the American and Foreign Christian Union is not the appropriate officer for such purpose; but this incidental object ought not, I think, to induce us to overlook the main and leading purpose of the litigation, nor does it justify bringing the defendants into court upon a question in which, if such were the sole object, they have so remote and scarcely appreciable an interest. I am, therefore, opposed to con*473verting this suit into one for the mere appointment of a new trustee.

I think, therefore, the referee was right in the conclusion to which he arrived, that the action, in its present form, is not maintainable. But it being an equity suit, in which a dismissal of the complaint is ordinarily equivalent to a decision upon the merits against the complainant, and a bar to a new action, it ought to have been dismissed without prejudice to a new action by a proper party or proper parties, and without prejudice to proceedings for the appointment of a new trustee in the place of the treasurer of the defunct American Protestant Society, if such course shall be thought proper by parties interested, and the institution of a new suit by such new trustee, if the parties interested shall be so advised.

The judgment of the special term should be thus modified, and neither party should have costs as against the other on this appeal.

Sutherland and Bonney, J J., concurred in the result of the foregoing opinion.

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