
    People, ex rel. Lauchantin et al., v. Lacoste et al.
    
    
      Religious societies.—Corporate elections.—Exceptions.
    
    In the Protestant Episcopal Church, the rector is both the presiding and the returning officer ; and Ins certificate of election is primd facie evidence of the right to the office.
    Persons contesting a corporate election, in, opposition to the return, must establish their otvn right affirmatively.
    The opinion of a witness that most of the persons who voted for one of the parties, were not legal voters, is no evidence of disqualification.
    An exception will lie to an improper question, though asked by the court.
    Appeal from the general term of the Supreme Court, in the first district, where a judgment entered upon a verdict in favor of the plaintiffs had been reversed, and a new trial awarded; the relators stipulating for judgment absolute, in case of affirmance.
    This was an action in the nature of a quo warranto, at the relation of Juste Laucliantin and others, against Pierre A. Lacoste and others, to determine the rights of the respective parties to the offices of warden and vestrymen of the French Protestant Episcopal church. du St. Esprit, in the city of New York.
    The complaint alleged that at an annual election of church-wardens and vestrymen of said church, held on Easter Monday, the 17th April 1865, pursuant to notice thereof given by the rector, and pursuant to the statute, the relator Lauchantin was elected church-warden, and the other relators were elected vestrymen of the said church. It further stated, in substance, that Lacoste and the other defendants, as church-wardens and vestrymen, respectively, had, at the time of the commencement of the action, for more than a month, held and exercised, and still continued so to do, those offices, without any legal election, appointment, warrant or authority whatever. That the relators were rightfully entitled to hold and exercise said offices, and that the defendants had usurped, intruded into, and unlawfully held and exercised, and still did unlawfully hold and exercise the same. It further stated, that said church was a religious Episcopal corporation, formed and organized under the laws of this state.
    In their answer, the defendants joined issue on all the allegations of the complaint, except as to the fact of an election held pursuant to notice, by the rector, and in accordance with the statutes, and "the allegation that the said church was a religious Episcopal corporation, formed under the laws of this state. They alleged, in addition, that they had been lawfully elected to, the respective offices held by them, and that they had since held and used said offices, as they had a lawful right to do.
    *On the trial before Smith, J., the defendants ’ having offered no testimony, the learned judge directed a verdict in favor of the plaintiffs. The evidence given on the part of the plaintiffs, to which exceptions were taken, is fully stated in the opinion. On appeal to the general term, the judgment entered upon the verdict was reversed, and a new trial awarded; whereupon, the plaintiffs appealed to this court, giving the usual stipulation.
    
      Peckham, for the appellants.
    
      Parker, for the respondents.
   Fullerton, J.

Section first, of article first, of title sixth, of chapter eighteenth, of part first, of the revised statutes, provides for the election of wardens and vestrymen in the Protestant Episcopal church in this state. The section contains this provision: “ At all such elections” (referring, with other elections, to the annual election of wardens and vestrymen), “ the rector * * * shall preside, and receive the votes *of the electors, and be the returning officer, and shall enter the proceedings in the book of minutes of the vestry, and sign his name thereto, and offer the same to as many electors as he shall think fit, to be by them also signed and certified.”

It appears, that at the election in question, one hundred and thirty-eight votes were cast. Of these, nineteen were for the relators, and one hundred and nineteen were for the defendants. The rector presided at the election," received the votes, acted as the returning officer, entered the proceedings in the book of minutes of the vestry, signed his name thereto, and procured the same to be signed by twenty-seven other persons. In the entry made, he certified that it appeared from a canvass of the votes, that the defendants Lacoste and Guental, were elected wardens, and that the other defendants were elected vestrymen. By virtue of this election, the defendants entered into the offices claimed by the relators. The defendants having received their certificate of election from the rector, are prirnd facie entitled to the offices in question.

It was the duty of the rector to preside at the election, and “to receive the votes of the electors, and be thé returning officer.” The presumption is that he did his duty, and received only the votes of electors. The relators; in order to succeed in this action, must establish, by competent evidence, that, at the election, they, instead of the defendants, were duly elected. The burden is upon them. They must prove, not only that illegal votes were cast for the defendants, but also that if the illegal votes were deducted the defendants had not received a majority. In other words, it was incumbent on the relators to show that the defendants, who held the certificates of election, and who were in possession of the office, received less than a majority of the votes of the duly qualified electors voting at the election.

To constitute a legal elector, one must be a male of full age, who shall have belonged to the church or congregation *for the last twelve months preceding the election, and must, in addition to these three requisites, have been baptized in the Episcopal church, or have been received therein, either by the rite of confirmation, or by receiving the holy communion, or by purchasing or hiring a pew or seat in said church,or by some joint act of himself and the rector, whereby he shall have attached himself to the Protestant Episcopal church.

The plaintiffs, to overcome the presumption created against them by the certificate of the rector, examined 18 witnesses. The examination of 15 of them was confined to their own qualifications as electors. One of the remaining three was not examined as to the qualifications of any elector. The two others were examined with reference to the qualifications of particular voters, not exceeding in all 80, including those who voted for the relators; and these were asked some general questions with reference to the remaining voters as a whole.

One of these witnesses was asked the following question: Q. “Those other individuals who came up and voted, and did not vote your ticket (i. e., the relators’), had you seen any of them at that church for more than a year preceding that election ?” A. “ Not that I recollect.” On his cross-examination he says: Q. “ Do you profess to be able to state from your recollection all you have seen attend there?” A. “Not by any means.” He gives only his recollection, at best. This is all the testimony given by this witness with reference to the voters not specially named.

The other witness swears as follows: Q. “ What persons did you see vote that printed ticket (i. e., the defendants’) whom you knew, personally, whether they were voters or not ?” A. “ There is only one, I presume, that voted that ticket that is a pew-holder.” *The presumption of the witness is of no value; and, if it were of value, it only relates to one of a cnass of equally important qualifications.

The same witness, after referring to several voters by name, says: “ All the others, I do not know anything at all about them.” This may mean very little, and possibly very much. The witness is then asked the following question : Q. “ You say the residue of those persons were not voters?” Question objected to by counsel for the defendants; objection overruled and exception taken. A. “Yes, sir.” No importance should be attached to this question and answer, in considering the evidence in the case. The question was clearly improper. Whether they were or were not voters, was a question for the jury, under the instruction'of the court, as to what were the qualifications of an elector, It was argued by the appellants’ counsel, that, inasmuch as the question was asked by the court, no objection or exception could be taken to it. We do not understand that the court has any greater right to ask, against the objections of counsel, improper questions, than counsel have. And if, against objection, he asks improper questions, it is the duty of the appellate court to correct the error.

Again, the witness testifies: Q. “Do you know that none of. the others were pew-holders?” A. “There was none of the others.” Again: Q. “ I understand you as saying that none of the others, than those that you have named upon the list which you hold in your hand, were connected with the church in any way, as attendants, communicants or pew-holders?” A. “I do not know of any more, to the best of my knowledge.” The witness subsequently testified that they may have been connected with the church, and he might not have known it.

*The testimony above referred to is all that there is in the case wit'll reference to the qualifications of about 100 of the 138 voters. We see no reason to reverse the judgment. The new trial was properly granted, and, under the Code, §11, we have no discretion but to direct judgment absolute for the defendants.

Order affirmed, and judgment absolute.  