#### The People *ex rel.*Kenney *v.*Winans *et al.*

*(Supreme Court, Chambers, New York County,*

*Filed January 27, 1890.)*

Religious corporations—Vestrymen—Mandamus.

A *mandamus*will lie to compel vestrymen to attend duly called meet" ings of the vestry, where it is shown that they intentionally absent themselves; that such meetings are necessary and cannot be held in their absence, and motion for the writ may properly be made by the rector.

Motion for *mandamus.*

*Hoffman*Miller, for relator; *John Alex.*Beall, for resp’ts.

O’Brien, J.

This is a motion for a peremptory writ of *mandamus*compelling the respondents to -attend meetings of the vestry of the Church of the Holy Nativity.

It is admitted that respondents have intentionally absented themselves from meetings heretofore called, and propose to absent themselves from such meetings as may be hereafter convened.

*652By their affidavits they seek to justify their conduct by alleging a disagreement with the relator as to the construction of a new church. The relator is rector and one of the trustees of such church, and the respondents are vestrymen. The dissensions existing among these vestrymen and trustees, as shown by the affidavits used upon the motion, is most unfortunate and deplorable, bringing as it does a matter into a court of justice and into the public gaze which could by a little religious forbearance; exercised by the parties, have been obviated. Standing as they do, however, upon their rights, it but remains for the court to determine the question presented, purely and entirely from a legal standpoint.

The relator, as a member of the body corporate, whose sole occupation and means of support are derived from such church, has rights in the property of the corporation which are recognized by statute. To him and the others associated with him in the board of trustees is entrusted the administration of the temporalities of the corporation. See Laws of 1875, chap. 79, § 4; Laws of 1876, chap. 176, § 1; Laws of 1813, chap. 60, § 8.

I am of opinion, from an examination of the laws just referred to, that the relator’s status entitles him to make this motion, and that the court has jurisdiction to entertain the same. It seems equally clear from the nature of the duties which the respondents are equally called upon to perform, and the duty devolving upon them by statute, that it is incumbent upon them to attend meetings duly called. The administration of the affairs of the corporation can only be effected by meetings of the vestry, of which the respondents are members. They are elected for that purpose. And to concede that thereby no duty is imposed to attend meetings would lead to endless confusion and serious embarrassment in the administration of the affairs of the corporation; would provide a lawful method by which the whole machinery of the body politic could be stopped, and would give a dissatisfied trustee a ready means of thwarting the will of the majority.

Morawetz on Private Corporations, 273, says: “Courts will interfere whenever the managing agents of a corporation cannot, or will not, properly carry on business, or where disputes have arisen between the properly constituted agents, causing a deadlock in the management of the corporate affairs.”

It being shown then that a meeting of the vestry is necessary, and that none can be held without the presence of the respondents, and they having admitted to have intentionally absented themselves, I do not see that any question of fact arises, or that anything remains but to grant the motion.

The excuses presented as to the serious differences existing as to the course to be pursued with reference to the building, or not building, of a new church, and other questions affecting the administration of the affairs of the corporation, present no valid reason for denying the relief sought. It is true that the writ is not an absolute writ of right, but rests in the sound discretion of the court, and though the applicant may have a - strict legal right, the court will not use its discretionary power for the pur*653pose of enabling Mm to assert it, when not convinced of the propriety of Ms motives.

The excuses presented and the reasons given might be considered if it were sought to compel the trustees to perform a particular or final act, but I do not think that the question of motive arises here, where the purpose sought to be obtained is merely to-secure a meeting of the vestry. As was well said in the case of *The People ex rel. Freer*v. *The Canal*Appraisers, 78 N. Y., 446, “ when the act, the doing of which is sought to be compelled by mandamus, is the final thing, and if done gives to the relator all that he seeks proximately or ultimately, then the question whether he is entitled to have that act done may be inquired into by the officer or person to whom the *mandamus*is sought, and is also to be considered by the tribunal which is moved to grant the *mandamus.*But where t he act to be done is but a step towards the final result, and is but the means of setting in motion a tribunal which is to decide upon the right to the final relief claimed, then the inferior officer or tribunal may not inquire whether there exists the right to that final relief claimed, and can only ask whether the relator shows a right to have the act done which is sought from him or it.”

In this case the plain duty, by virtue of their election, has been imposed upon the respondents to attend duly called meetings of the vestry, and if, at such meetings, a course is attempted to be pursued detrimental to the interests of the corporation, destructive of its corporate rights or property, then the very provisions of the statute which gives the court jurisdiction over the trustees of a religious corporation also confer jurisdiction to supervise the actions of such trustees and can require them to use and manage the property of the corporation according to the rules and usages of the church or denomination to which the corporation belongs, and can restrain them by appropriate orders and decrees in actions or proceedings properly instituted for that purpose from diverting the property held by them as trustees, or from using the revenues which come into their hands, except for the support and maintenance of the church or denomination to which they are attached. *People ex rel. Peck*v. Conley, 42 Hun, 98; 3 N. Y. State Rep., 372.

It is to be hoped that none of the evils anticipated by the respondents will flow from the meeting of the vestry to be held, but that having in view the religious purposes of their organization and the true interest of those who have entrusted them with the power, that the same will be exercised justly and with a view to promote the best interests of the corporation.

Motion for a peremptory writ granted.