
    *The People, ex. rel. Smith and others, vs. Peck & Wortendyke.
    At elections of trustees of churches, (in all the churches of this state except the Protestant Episcopal and the Reformed Protestant Dutch Church) two of the elders or church, wardens must preside; if there be no such officers, then two of the members of the church may preside.
    A clergyman or preacher in the Baptist Church, though ordinarily called an elder, is not an elder within the meaning of this statute.
    
      Parol evidence is admissible of the number of persons entitled to vote at such elections, although a* register of the names of the stated hearers in such church is kept by the clerk of the trustees.
    A certificate of the election of trustees may be received in evidence, in a suit testing the validity of their election, although the same be not granted until months after the election.
    An election of trustees of a church is good, although the requirements of the statute in respect to the •notice of such election have not been complied with, provided that the election was fairly conducted, and there is no complaint of want of notice.
    Information in the nature of a quo warranto. An information in the nature of a quo warranto was filed by the attorney general, charging the defendants with having intruded themselves into the office of trustees of the Bethel Baptist Church of the city of New-York. The defendants pleaded that on the first day of January, 1831, they were duly elected trustees of that church, at an annual election held for that purpose : traversing the usurpation, &c. To which plea a replication was put in, denying that an election was held on the day set forth in the plea, and also denying the election of the defendants as trustees. On this issue the parties went to trial .at the New-York circuit, in October, 1831, before Hon. Ogden Edwards, one of the circuit judges.
    The following facts appeared: The first election of trustees of the Bethel Baptist Church was held on the 26th November, 1810, when six trustees were elected, and the certificate of such election was recorded on the 4th December, 1810. Two or three weeks previous of the first day of January, 1831, the clerk of the trustees for the year 1830, by order of the trustees, caused a notice in writing to be delivered to Mr. Chace, *the pastor of the church, that an election of two trustees would be held on the first day of January, omitting in the notice the names of the trustees whose term of service was about to expire. The election was announced from the pulpit once, about two weeks previous to the election, but not oftener.
    On the first day of January, 1831, the congregation were assembled, and the pastor of the church delivered an address to the scholars of the Sunday school attached to the church, and before leaving the pulpit, announced that the time had arrived for proceeding to the election of trustees, and from a paper handed to him, nominated William C. Hawley as moderator, and William Thompson as clerk, to preside at the election, or to act as inspectors of the election, who took their seats accordingly. Immediately after it was understood that the congregation were about to proceed to the election of trustees, a number of members of the church, who it seems were unwilling to attend upon religious exercises conducted by Mr. Chace, and who were waiting in the porch of the church, entered and objected to Messrs. Hawley and Thompson presiding as inspectors, on the ground that they were not adders of the church, and that the statute in reference to religious societies required that two of the elders of the church should be chosen to preside. Mr. Hawley had never been elected or appointed an elder of this church, although it was conceded that he was an assistant minister of the church; and as to Mr. Thompson, there was no pretence that he was an elder. Whilst the question thus raised was under discussion, Mr. Chace, the pastor of the church, proposed that certain resolutions should be read, which had been passed by the church on the morning of that day, containing censures of certain members and designating those who had a right to vote. The question was put, and the reading of the resolutions ordered by a majority of the meeting, and Mr. Thompson, one of the inspectors, accordingly commenced reading them ; upon which a disturbance arose, and there was much noise and confusion ; in the midst of which Josiah P. Knapp, one of the trustees of the church, nominated a Mr. Brown and a Mr. Verbryck, two deacons of the church, as inspectors of the election, and put the nomination to vote, which was approved by a number of voices and not dissented *to by any. After a fruitless attempt on the part of Mr. Knapp and his friends to possess themselves of the table at which Messrs. Hawley and Thompson were seated, and being unable to obtain more than the ballot-box, they retired from the middle aisle of the church to one of the pews, where it was announced by Mr. Knapp that the poll was opened, and the members of the church were invited to deposit their votes. A similar proclamation was made by Messrs. Hawley and Thompson, and two polls were in fact held at the same time. At the poll held by Messrs. Brown and Verbryck the defendants in this cause were elected trustees, and at the other poll two other individuals were elected. Messrs. Brown and Verbryck, immediately after the poll was closed, made out a certificate of the election of the defendants; but for some reason not explained, they also made out another certificate of the same fact, six months afterwards. One of these certificates was produced on the trial, and the clerk of the trustees not being able to say whether the certificate produced was the one firstly or lastly made, the counsel for the relators objected to its admission ; but it was received by the judge, and the counsel excepted. The evidence being closed, the judge charged the jury that the election was not necessarily void for the omission of the trustees to notify an election a month previous to the expiration of the terms of the trustees, whose places were to be filled ; or because the names of those whose terms of service expired were not mentioned in the notice ; or because the notice was not announced from the pulpit for two successive Sabbaths previous to the election; or because the election was not at least six days before the vacancies happened ; or because the certificate of election was not made until six months after the poll closed, provided the election was conducted in good faith ; but if the omissions, or any of them, were for fraudulent purposes, or if the election had been prejudiced thereby, then he instructed the jury such omissions would invalidate the election. The counsel for the relators excepted to the charge of the judge. The jury found a verdict for the defendants. The relators moved for a new trial, and besides relying upon the exceptions above noted, raised a question upon the following exception : In the course of the *trial, an inquiry was made of a witness by the counsel for the defendants, as to the number of the members of the Bethel Baptist Church. The counsel for the relators objected to the number being shown by parol, contending that as the statute required a register to be kept of the members of the church, such register was the only proper evidence in the case. The objection was overruled, and the counsel excepted.
    S. Sherwood, for the relators.
    F. B. Cutting & S. P. Staples, for the defendants,
    who cited the following cases : 9 Johns. R. 147; 7 Mod. R. 195; 6 Cowen, 25; 6 Wendell, 422; 16 Mass. R. 94; 2 Kent’s Comm. 295; Angel & Ames on Corp. chap. 4, 65, &c.; Cowper, 539; Wilcock on Corp. 215; 4 T. R. 381.
   By the Court,

Savage, Ch. J.

The plaintiffs ask for a new trial on several grounds involving the regularity of the election of the defendants, as trustees of the Bethel Baptist Church, in the city of New-York.

The act to provide for the incorporation of religious societies, 3 Revised Statutes, 292, directs the mode of proceeding to create a corporation, and to continue it. By the third section, which is applicable to this case, it is the duty of the minister, if there be one, to notify publicly the congregation of the time and place of holding an election' for the choice of trustees. The place shall be the church, or place of meeting for divine worship ; the time shall be fifteen days or more after the notice, which is to be given for two successive Sabbaths preceding the day of election. On the day of the election, two of the elders or church wardens shall be chosen to preside as inspectors of the election; if there are no such officers, then two of the members of the church to be nominated by a majority present, shall preside at such election; and the presiding officers shall immediately thereafter certify the names of the persons elected as trustees; which certificate is directed to be acknowledged and recorded. The sixth section provides for the continuation of the corporation: It directs that the trustees first elected shall be divided into three classes, so that one *third may be elected annually. It is made the duty of the trustees, or a majority of them, at least one month before the expiration of office of any of the trustees to notify the same to the minister, or, in case ■of his death or absence, to other officers of the church, specifying the names of the trustees whose times will expire ; and it is made the duty of such minister or other officers, in manner aforesaid, to notify the members of the church of such vacancies, and appoint the time and place for the election of new trustees to fill up the same, which election is to be held at least six days before such vacancies shall happen; and all such subsequent elections are directed to be held and conducted by the same persons, and in the manner before directed. The seventh section declares the qualification of voters at such elections, and makes it the duty of the clerk of the trustees to keep a register of the names of all persons who desire to become stated hearers, with the time when their request was made, and to attend the elections for the purpose of testing the qualifications of electors. ,

It appears by the case, that on the first of January, 1831, an election was held for the choice of two trustees. Two clergymen officiated in this church, and both attended the election; much confusion prevailed; two polls were held in the church at the same time, and two sets of trustees were elected. The defendants received a certificate of their election, and were admitted as members of the board of trustees. The object of this suit is to oust them from their seats.

It seems that for some time previous to the election in question, there were two parties in the church—one denominated the Chace party, consisting of those adhering to Mr. Chace, the clergyman of the church ; and the other opposed to him, denominated the Knapp party: Mr. Knapp taking an active part against Mr. Chace; that Mr. Chace had selected the morning of the day of election as a suitable time to make an address to the scholars of the Sunday school, and thus had assembled a large congregation of persons of all ages and sexes, except that portion of the congregation opposed to himself, and who had worshipped separately from his party, but were members of the congregation, and had a right to participate in the choice of trustees. It seems, too, that he thought *proPer t0 proceed to the choice of trustees, without dismissing his congregation. With a law book in his hand, he said that they would proceed according to law; and stating that he had read the law. he nominated two persons to act, one as moderator, and the other as clerk, and putting the question, declared it carried. The persons thus nominated placed themselves at a table, and were proceeding, as some of the witnesses state, to take votes, when Mr. Knapp and others objected, alleging that they were improper persons to preside. After some confusion, Knapp nominated two of the elders or deacons of the church as inspectors, and put the question, which was carried. A scuffle then ensued for the table, but the moderator and his clerk kept it, though Knapp’s party obtained the balloting box, and retired into a pew, a few feet distant; when both polls were opened, and two sets of trustees were chosen. It seems also, that after the moderator and clerk were chosen, instead of proceeding directly to their business, they read certain church resolutions, which had been passed that morning, and the reading of which was called for by Mr. Chace.

It is impossible to read this case without being struck with the indiscretion (to say the least) with which the business was conducted. A religious exercise upon such an occasion was without precedent in that church, as testified to by one of the witnesses ; and it was probably known that a portion of the congregation were not in the church, and were waiting at the door for the conclusion of the religious exercises ; and yet, without any dismissal of the church, or suspension of business, the pastor, without leaving the pulpit, nominates the officers to preside at the election. He stated that he was about to proceed according to law, and nominated officers in contravention of the law.

Perhaps the circuit judge was right in considering the officers nominated by Mr. Chace, as the presiding and inspecting officers of the election, whatever might be the names given to them ; but if so, why were not the persons designated in the statute selected 1 Such persons were present, and the selection and appointment of any others was improper and illegal. There is no pretence that Mr. Thompson was an elder *of the church; nor do I think that Mr. Hawley was an elder, within the meaning of the statute—he was a preacher, an associate minister with Mr. Chace. I am aware that the clergymen in the Baptist church are called elders, but the statute did not mean the clergy, but subordinate officers, known by that title ; the clergyman has no duty assigned him in conducting the election, but simply to read the notice for two successive Sabbaths. The legislature evidently did not intend or expect any active interference by the clergy; and this case calls for the further remark, that the impropriety of such interference was never more strongly exemplified. As soon as the moderator and clerk were prepared for business, instead of permitting them to take votes for trustees, Mr. Chace insisted on having the resolutions above referred to read; instead of acting as the messenger of peace, he was the first to throw the apple of discord ; “then,” says Mr. Hawley, “ the disturbance began.” But it is not my business to comment upon the conduct of the parties concerned, only so far as it affects the question now before the court.

I have no hesitation in saying that the appointment of Messrs. Hawley and Thompson, as presiding officers, was illegal, unless there had been no elders of the church present; their nomination was objected to, and was altogether improper. The nomination made by Mr. Knapp of two of the elders of the church was not opposed, but was carried ; Messrs. Brown and Verhryck were therefore the only persons regularly appointed presiding officers ; theirs was the only poll regularly open to receive votes, and they were the only persons present, who had a right to certify as the persons chosen. The statute is too clear to admit of a doubt. If there are elders or church wardens present, they and they alone, must be appointed to preside; if there are no such officers, then two of the members of the church may be chosen. The verdict of the jury was right, and in my opinion, is well supported by the testimony; and unless there was some misdirection of the judge, the verdict cannot be disturbed.

I will therefore consider the objections to the decisions and charge of the judge, in the order in which they are presented in the plaintiff’s points. 1. He admittedparoZ proof of the ^number of the electors. The statute makes it the duty of the clerk of the trustees to keep a register of the names of the stated hearers of the church, and of the time when they became so. The object is to test their right to vote, and that is the only use to which the register is required to be put; it does not prevent the introduction of parol proof as to the number of the members of the church. ¡Besides, it did not appear that any such register was in existence. 2. There is surely no weight in the objection to the certificate of the inspectors ; two had been made; one soon after the election, the other some months afterwards; they were alike, and either was sufficient. And I also concur in the opinion that a certificate signed at any time after the election would be proper evidence.

The statute is directory to the presiding officers to certify the result immediately ; but should they refuse or neglect to do so, the church is not to be without officers: the votes of the members cannot thus be rendered ineffectual. 3. The judge stated to the jury that the election was not necessarily void because the notice given by the trustees to the minister was less than one month, &c. and did not contain the names of the trustees whose seats became vacant, and was not announced for two successive Sabbaths provided the election was fairly conducted, and all in fact had notice ; but if the omissions were fraudulently made, or the election had thereby been prejudiced, then the omissions should invalidate the election. All this I think is sound doctrine. In The People v. Runkel, 9 Johns. R. 158, the court say, we must give the statute a reasonable and liberal construction, for the benefit of the churches. See also 6 Cowen, 23. The object of the notice is, that the voters may be fully apprized of the election, and may attend and exercise their rights. There is no pretence in this case that every voter was not present, for they appear to have come from a distance ; the time was well understood, and had been the same for many years. No evil resulted from the omission, if there was any ; no fraud was imputed ; and all parties attended, and thereby admitted notice.

New trial denied.  