Wassil A. KRESHIK v. SAINT NICHOLAS CATHEDRAL.

The motion for leave to proceed upon the record in No. 3, October Term 1952, and the petition for certiorari, are granted.

In a prior decision in this litigation, we held that the right conferred under canon law upon the Archbishop of the North American Archdiocese of the Russian Orthodox Greek Catholic Church, as the appointee of the Patriarch of Moscow, to the use and occupancy of the St. Nicholas Cathedral in New York City, owned by respondent corporation, was 'strictly a matter of ecclesiastical government,' and as such could not constitutionally be impaired by a state statute, New York Religious Corporations Law, McKinney's Consol.Laws, c. 51, Art. 5—C, purporting to bestow that right on another. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120. We reversed a judgment of the New York Court of Appeals against the petitioners' predecessors in office, and remanded the case for 'further action * * * not in contravention' of our opinion. Id., 344 U.S. at page 121, 73 S.Ct. at page 157.

The Court of Appeals ordered a retrial of the question of petitioners' right to use and occupancy, on a common-law issue assertedly left open by our invalidation of the statutory basis for the former decision. 306 N.Y. 38, 114 N.E.2d 197. After trial, the Court of Appeals directed the entry of judgment against petitioners, holding that, by reason of the domination—so found by that court to be the fact—of the Patriarch by the secular authority in the U.S.S.R., his appointee could not under the common law of New York validly exercise the right to occupy the Cathedral. 7 N.Y.2d 191, 196 N.Y.S.2d 655, 164 N.E.2d 687.

As the opinions of the Court of Appeals make evident, compare 302 N.Y. 1, at pages 29—33, 96 N.E.2d 56, at pages 72—74, with 7 N.Y.2d at pages 209—216, 196 N.Y.S.2d at pages 667—673, 164 N.E.2d at pages 696—700, the decision now under review rests on the same premises which were found to have underlain the enactment of the statute struck down in Kedroff. 344 U.S. at pages 117—118, 73 S.Ct. at page 155. But it is established doctrine that '(i)t is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.' N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463, 78 S.Ct. 116o, 1172, 2 L.Ed.2d 1488. See Shelley v. Kraemer, 334 U.S. 1, 14—16, 68 S.Ct. 836, 842—843, 92 L.Ed. 1161, and cases there cited. Accordingly, our ruling in Kedroff is controlling here, and requires dismissal of the complaint.

Reversed.