The only restraint is in the power of the society, by vote of its members, to fix the salary of the person employed as their minister. The trustees may also make such regulations in respect to the renting and occupation of pews, as to exclude persons holding obnoxious opinions from becoming attendants upon worship, and thereby obtaining a right to vote. This is the only way that the use of the church property can be restricted to the propagation of any particular form of religious belief, or ecclesiastical organization, unless there be some express condition affecting the grant of the corporate property. (Petty v. Tooker, 21 N. Y. Rep. 267.)

§ 283. Persons otherwise qualified do not lose their right as corporators to vote at elections, by reason of their having individually or collectively renounced the doctrines and ecclesiastical government professed and recognized by the religious body in whose worship and service the corporate property had always been employed, and the title of trustees to office and to the control of the corporate property is not impaired by any alteration in doctrine or church government on their part, or on the part of those by whom they are elected. (Ib.)

§ 284. Should a religious society think proper to separate from the church with which it has previously been connected, and form a connection with another denomination, the trustees have the power to employ such minister as they see fit, and to exclude from the pulpit a minister appointed by the ecclesiastical judicatory with which the society was previ ously connected. And a court of equity has no power to control their action in the employment or payment of a minister. (Burrel v. Associate Reformed Church of Seneca, 44 Barb. 282.)

§ 285. The remedy for an intrusion into, and usurpation [Tr.]

9

of, the office of trustee of a religious society or corporation, is by action, by and in the name of the Attorney General, upon his own relation or upon the relation of a private party, substantially as by information in the nature of a quo warranto under the old practice; and the title to the office cannot be tried in any other way. (Parish of Bellport v. Tooker, 29 Barb. 256.)

CHAPTER XXIII.

RELIGIOUS SOCIETIES IN NEW YORK-ACTIONS BY AND AGAINST RELIGIOUS SOCIETIES-NAME TO BE PROSECUTED IN-CAUSE OF ACTION-CHARTER NEED NOT BE PROVED UNLESS DENIED IN DEFENDANT'S ANSWER.

§ 286. A religious corporation in the State of New York has a cause of action for damages which it may sustain in its corporate capacity, or upon contracts entered into with it as such corporation, the same as other corporations; and it is also liable to an action in all cases where other corporate bodies would be liable; and all actions must be prosecuted by or against a religious corporation in its corporate name.

§ 287. A religious corporation has an action against a railroad company for a nuisance, in running their cars and engines, ringing their bells, blowing off steam, and making other noises in the neighborhood of a church or meetinghouse on the Sabbath, and during public worship, which so annoy and molest the congregation of the house, and render the same unfit for a place of religious worship; and the action for such injury may be brought in the name of the society in its corporate capacity, and need not be brought by the indi

viduals affected thereby. (First Baptist Church in Schenectady v. The Troy & Schenectady R. R. Co. 5 Barb. 79.)

§ 288. The doctrine laid down in the last preceding sec tion may be regarded as not fully settled. Some judges hold that in the case supposed the society cannot sustain an action for the injury, because the damage is too remote. The opinion is entertained that the religious corporation cannot sue for disturbing the congregation while worshiping in the church edifice, by making a noise; that there must be some injury to the property, immediate or consequential. Such judges hold that the congregation or society, in such case, being the persons molested, cannot maintain an action for the injury, even though the noise and confusion might amount to a public nuisance. (The Same v. The Utica & Schenectady R. R. Co., 6 Barb. 313.)

§ 289. Perhaps, if the acts referred to were committed upon a week-day, and not on the Sabbath, or upon the Sabbath, for objects contemplated in the exceptions contained in the statutes of the State, making it unlawful to labor or travel on that day, the action could not be maintained without showing that the acts complained of were unreasonable or willful, wanton or malicious. The law authorizes the running of a railroad upon week-days, and for certain purposes and under certain circumstances upon the Sabbath; but every one is bound to so use his own, and so exercise his rights, as that he shall not injure the property or unreasonably impair the rights of another. Hence acts, sometimes lawful in themselves, sometimes become wrongful and illegal, in consequence of the time or place or manner of performing them. (The Same v. The Sch. & Troy R. R. Co., supra.)

§ 290. A religious corporation may maintain an action for rent accruing under a conveyance to individuals for the use

of the church, which at the time of the grant was not incorporated, but subsequently became incorporated and acquired the legal capacity to take and hold real estate, and in bringing the action the corporation need not aver its capacity to take and hold land, because the statute itself gives this capacity to religious incorporations, which renders any such averment unnecessary. (Reformed Dutch Church of Schenectady v. Veeder, 4 Wend. 494.)

§ 291. A deed of land to trustees de facto of an unincorporated religious society, conveys no title to the society, and individuals claiming to be the successors of such trustees cannot maintain an action against persons who are in the actual possession of the land thus conveyed, and the house of worship erected thereon, under a claim that they are trustees of and represent an unincorporated society which owns the same. Such action cannot be maintained by such trustees either for the purpose of having themselves declared to be the legal trustees of the society and the successors in office of the grantees named in the original deed of the land, or for any other purpose connected with such property. The only remedy in such cases is to get the society incorporated and then take measures to compel the conveyance of the property to the society. (Bundy v. Birdsall, 29 Barb. 31.)

§ 292. A contract made by trustees de facto of a religious corporation with an innocent person, before a judgment declaring their election illegal, is binding upon the corporation, and the same may be enforced by action; and, indeed, all the rules applicable to other corporations apply to religious societies, with the exceptions and limitations created by statute. (Ebaugh v. German Church, 3 E. D. Smith, 60.)

§ 293. In actions brought by religious corporations, as in

other domestic corporations in the State, it is not necessary to prove, on the trial of the cause, the existence of such corporation, unless the defendant shall have pleaded in abatement or in bar that the plaintiff is not a corporation. (3 Stat. at Large, 477, Sec. 3.)

CHAPTER XXIV.

RELIGIOUS SOCIETIES IN NEW YORK-DATE OF THE PRESENT SYSTEM-SUPPORT AND ORGANIZATION OF CHURCHES IN COLONIAL TIMES-TRINITY CHURCH, CITY OF NEW YORK.

§ 294. The present system of incorporating religious societies in the State of New York, originated in the year 1784. Previous to that date, and in colonial times, the gospel ministry was sustained by public provision and appropriation, or by societies incorporated by special charters granted by the home government or by the acts of the Colonial legislature. In some cases. public religious worship was maintained by a direct tax upon the whole people; in others by imposts, customs and penalties, and in others by the voluntary contributions of the members of the regularly organized religious society.

§ 295. By the "freedoms and exemptions" for New Netherlands, granted by the directors of the General Incorporated West India Company, at the Assembly of XIX, with the approbation of the "High and Mighty Lords States General of the United Netherlands," to all "Patroons, Masters and Private persons," who would plant any colonies, or introduce cattle in New Netherlands, exhibited 19th July, 1640, it was provided that no other religion should be pub