#### EDMUND H. WATKINS, Appellant, *v.*TIMOTHY D. WILCOX AND OTHERS, RESPONDENTS.

*Religious corporation organized under act of*1813 — *status of—when must be party to action—when one corpos'atoi' may bring action to set aside comeyanee made by it*— *right to rote.*

In an action brought to set aside an order changing the name of a religious corporation, the corporation must be a party.

When property of a religious corporation is sold for its full value, and the only objection to the sale lies in alleged irregularities in the proceedings before the County Court, an action by a corporator to declare the conveyance made by the corporation void, will not be sustained.

A corporation formed under section 2 of “ an act to provide for the incorporation of religious societies,” passed April 5,1813, is not an ecclesiastical corporation in the meaning of the English law; but "the majority of the corporator! have the right to control the corporate body in accordance with their beliefs, and they are free from any ecclesiastical restriction. It is a connection witlj the particular society, not with the denomination at- large, that gives the righj to vote.

Appeal from a judgment in favor' of defendant, entered at tlnj Tompkins Special Term.

The religious society which is the subject of controversy in thil action, was incorporated at Ithaca, New York, on the 8th day o| April, *1880,*under the general act for the incorporation of religion! societies, passed April 5th, 1813. The corporate name of thl society was “ The Elders and Deacons of the Reformed Protestan! Dutch Church of Ithaca.”

The ecclesiastical body, or church, established their ecclesiasticfl relations with the classis of Geneva.

The plaintiff was a member of the congregation at the organizd tion of the society in April, 1830, and continued such member the society and church till December, 1872.

The church body remained in ecclesiastical connection with tl classis of Geneva till December, 1872, when, by the unanimor vote of the church, except the plaintiff, and by the unanimous vof of the society, except the plaintiff!, this ecclesiastical connectic was severed.

On the 17th day of February, 1873, a contract was made for til sale of the parsonage. • '

*221On the 29th of March, 1873, the name of the society was changed by order of lion. D. Boardman, a justice of the Supreme Court, in accordance with chapter 464, Laws of 1847, and chapter 323, Laws of 1853.

*Samuel A.*Foot, for the appellant.

*F. M.*French, for-the respondents.

Learned, P. J.:

The plaintiff asks for relief in several respects.

First. He asks that an order of a justice of this court, changing he name of a religious corporation, be declared void.- The corporation is not a party to this action, and he is only one of the orporators. It was not necessary that all the corporators should e heard upon that application.* I do not see that he has any tanding in court on that point.

Second. He asks that an order of the County Court, authorizing íe sale of certain real estate of this corporation, together with the le in pursuance thereof, be declared void. The purchaser is a arty to this action.

There may be cases in which a corporator, making the corpora-on a party, can sustain an action in equity to declare a conveyance, íade by the corporation, to be void. Such would be a case of and and collusion between the purchaser and the officers of the rporation. There is nothing of that kind alleged. It is not •etended that ^ the property was not sold for a fair price and paid r *tona fide;*or that the avails were not applied as directed by the •der. The objections raised touch the legal regularity of the proedings before the County Court, and the validity of the deed. If e purchaser’s title be defective by reason of any of these matters, will be time enough to try that question when the corporation all bring ejectment against him. The plaintiff does not show mself to be wronged, when the corporation has received full paynt for property which they have, as he alleges, failed to convey a good and valid deed.

Third. He asks a judgment declaring that the persons who, pre*222vious to a day named, were members of a certain religious corporation, and who seceded that day, ceased to be members of said corporation. So far as the words, “ members of that church,” imply religious rights and privileges, we have nothing to do with the matter. So far as they imply civil rights —• that is, rights to property, or rights in a legal corporation — no judgment would be valid, because those persons are not parties. Furthermore, we are not to pass on the mere question, who were corporators at a certain time, until some one claims that his rights, as such corporator, were interfered with; and then we have only to do with his own ease.

Fourth. The principal matter however involved, is, the question-whether, or- not, certain of the defendants are now the lawful trustees of this corporation; and the principal relief asked is, that the transfer to them of the care of the temporal affairs should be held void, and that the consistory, as constituted in 1872, should be adjudged entitled thereto.

The incorporation in question was formed under section 2, of “an act to provide for the incorporation of religious societies,” passed April 5th, 1813, under the name of “ The Elders and Deacons of the Protestant Beformed Dutch Church of Ithaca.” It was in connection with the general synod of the Beformed Church in America, and with the classis off Geneva, an inferior ecclesiastical body connected therewith.

In July, 1872, a large majority of the church and congregation petitioned the classis to dismiss the church *from*its ecclesiastical connection. Nearly all the consistory did the same. A meeting of the consistory in October, 1872, with one only dissenting (the I plaintiff), requested the dissolution of the relation between the church and that classis. The matter was referred by the classis to a committee, who reported, and whose report was adopted April, 1873. In that report the committee state that the connec-1 tion between this church at Ithaca and the classis, “was and is I voluntary, and that either party has the legal right to terminate itl whenever such party shall think proper.” But the classis declined | to terminate the connection itself.

In December, 1872, a resolution was passed by the congregation,! recommending that the church sever its relations with the body with! which it was connected. The vote was twenty-three male persons ini *223favor, and one opposed; sixty of all present in favor,' and one opposed. The same day the church voted to disconnect itself from the classis of Geneva, and the general synod of the Beformed Church of America. The vote was sixteen male members in favor, and one opposed; and forty-six of all members, male and female present, in favor, and one opposed.

In February, 1873, the consistory of the church voted to confide the management of the temporal concerns to a body of nine trustees, under chapter 90, Laws 1835 ; and trustees were elected accordingly. Subsequently, an application was made to a justice of the Supreme Court for a change of the name of the church, and it ■ was changed accordingly to “The First Congregational Church of Ithaca, New York.” This application was in accordance with a unanimous vote, at a meeting where nearly all the members of the church were present.

In all this, how has the plaintiff been injured ? The change of name is not, of itself, -a change of religious doctrine or systems; although it may be significant of such a change. For instance, if the name had been changed to “The Catholic and Apostolic Church of Ithaca,” it would not follow that the defendants had adopted the Irvingite belief.

Then, as to the election of trustees to manage the temporal affairs of the church, that is a course quite consistent with the doctrines of the Dutch Beformed system, and adopted by some of their churches. In fact, the law was passed for their especial benefit.

The consistory, or the church, have elected or called a clergyman who is a Congregationalist. But it appears that clergymen of the Congregational order have, in other instances, preached in Dutch Beformed churches. The plaintiff, however, states that he cannot conscientiously worship with this Congregational church. This would, however, seem to be owing to a change in the form of worship, as there is no proof of any material change in doctrine.

But it may be well to examine this case on the broad grounds raised by the plaintiff’s counsel. In substance, these are, that, as the majority of the congregation have severed themselves from the old ecclesiastical connection, the property belongs to the minority. It is important to notice here, that the law of charitable uses has *224* no existence in this State. “ Corporations take and hold property only to the amounts, *and,for the purposes prescribed*by their charters or acts of incorporation.” * And, in the act to provide for the incorporation of religious societies,† the only purpose prescribed is to be found in section 4. There it is said that the trustees of every church, congregation or society, hold the real and personal estate “ for the use of such church, congregation or society, or other pious uses.”

So far, then, as the express language of the act goes, there is nothing which declares that the trustees hold the property for the ° support of the believers in any particular tenets. That act is one in all its scope. It provides for the incorporation of religious societies in three different cases: First, in the Protestant Episcopal churches; second, in the Dutch Deformed; third, in all others. In each instance it provides for the election of persons to be trustees. In the first, these are the rector, wardens and vestrymen; in the second, the minister, elders and deacons; in the third, those who are elected trustees. But in each case their authority is not by virtue of any ecclesiastical office; it is simply because the law declares them to be trustees. And section 4 speaks of all these trustees alike, giving them, in each case, the same powers.

I see no reason to think that the trustees of societies organized under one section of this act, have any different rights or authority from the trustees of societies organized under either of the other sections; or that any system was intended to be established under section 3, different from that established under sections 1 and 2. The counsel for the plaintiff urges strongly that the contrary is true, and that an *ecclesiastical*character is possessed by the societies formed under sections 1 and 2, which does not belong to those formed under section 3. But we must notice that there are many other large denominations which are as thoroughly organized, and are as much accustomed to have what, by a misnomer, are called ecclesiastical courts, as either of those denominations named in the first and second sections. Such, to name no others, are the Presbyterian, the Methodist Episcopal, the Lutheran. Now, the religious societies connected in belief with these organizations, must *225incorporate themselves under the third section of the act, and have done so. To take the Presbyterian denomination as an illustration : it has its session, presbytery, synod, and general assembly; very closely analogous to the consistory, classis, particular synod and general synod of the Dutch church.

And while it is not easy to measure ecclesiastical claims to jurisdiction, those of the Presbyterian denomination are probably as comprehensive as those of'the Dutch Reformed. Unless, then, there should be some very positive indication to the contrary, it would be unreasonable to think that any different rights or duties were given by the same act to the religious societies and their trustees incorporated by the Dutch Reformed, from those given to the societies and their trustees incorporated by the Presbyterians.

The act was intended to form a general system, and to make only such variations as would facilitate, in each denomination, the election of trustees, by harmonizing such election with old and existing customs.

I think, then, that the law of this case is settled by the decision of *Robertson*v. *Bullions,*
      ***
      **and by the. cases which have followed the views there expressed. Religious societies are not ecclesiastical corporations in the meaning of the English law. They are civil corporations. The corporation consists not of the trustees but of the members of the society. And, in the language of that decision, “ it was the intention of the legislature to place the control of the temporal affairs of these societies in the hands of a majority of the corporators, independent of priest or bishop, presbytery or synod, or other ecclesiastical judicatory.” The doctrine laid down in that; case is affirmed, in language directly applicable to the present controversy, in the case of *Petty*v. *Tooker,*
      *†*
      **and again in *Gram*v. *Prussia*Society.‡ It is followed in *Burrel*v. *Associate Reformed Church.*
      *§*
      **And whether these decisions were made in cases of corporations organized under the third section, or under the first and second, does not seem to me to have been considered important. The language of the decisions is general, and in no respect limited. And, if we examine the act in question, we shall find that all the provisions giving rights and powers to the trustees, are general; and that the only distinction is "in respect to the mode of election. *226Thus, section é, already • mentioned, defines the powers of the “ trustees of every church congregation or society hereinabove mentioned.” Section- 8 deprives the trustees of “ any church congregation or society,” of the power to fix the salary of a minister. Section 9 authorizes “any religious corporation,” etc., to reduce the number of its trustees. Section 11 gives the general power to apply for leave to sell real estate.

It is insisted that one qualification of a voter in corporations, under the second section, is to be a communicant in good standing, and that the members of this church have ceased to be such. The legislature, by the act of 1836, * authorized any church in connection with the Reformed Dutch, to modify its system by electing trustees. It is not found by the referee that the persons who voted for these trustees were not members of that church in good standing.. The consistory of the church is the tribunal which decides on the standing of the members, and that body had not excommunicated any of these. Their right to vote was undisturbed. If we look at the first section of this act by way of illustration, we shall see that the right to vote depends on connection with the particular organization — the individual society. The voter is one “ who shall have belonged to such church or congregation,” etc,, “ or. by some joint act of the parties and of the rector, whereby,” etc. Thus it is a union or connection with the particular society, not with the denomination at large, which gives the right to a vote. The same is seen in section 3, qualified by section 7, making stated attendance and contribution the qualification. And analogy shows that, under the second section, the good standing which is said to be necessary under “the rules and usages,” is a good standing in the particular church or society. It seems to me, therefore, to follow from the decisions last above mentioned, and from the case of *Holmes*v. Mead, that the majority of the corporators have the right to control, and that they are free from any ecclesiastical restrictions, † If there is anything contrary to this view in *Watson*v. Jones, ‡ or in the decisions of other States, it is not binding.

And I fully agree with the principle which thus seems to me to be established. In spite of written symbols, the beliefs of men *227change, and have changed; and I look with no favor on a rule which would permit the past generations to appropriate property to the support of their beliefs, so permanently as to deprive the present of the use of such property, in case those old beliefs shall have passed away.

The judgment should be affirmed, with costs.

Present — Learned, P. J., and James, J.

Judgment affirmed, with costs.

Laws 1853, chap. 323.

Holmes v. Mead, 52 N. Y., 332.

Laws of 1813, chap. 60.

11 N. Y., 243.

21 N. Y., 267.

**36 N. Y., 161.

44 Barb., 282.

Chap. 90.

See, also, Austin v. Searing, 16 N. Y., 113.

**13 Wall., 714