
    THE MADISON AVENUE BAPTIST CHURCH against THE BAPTIST CHURCH IN OLIVER STREET.
    
      New York Superior Court; Special Term,
    
    
      January, 1867.
    Beliqioüs Cobpobations.—Petitions ;—Oedebs.
    In a proceeding for a sale of the property of a religious corporation, allegations that the income of the society was not sufficient to pay their liabilities or meet current expenses 'are sustained by proof that" the current expenses, including interest due by the terms of bonds issued by the society, though not called for by the bond holders, are in excess of receipts.
    The jurisdiction "of the court does not depend on the question whether the committee .were appointed by the corporators, if it be shown that the corporators, at a corporate meeting ratified the action of such - committee.
    To constitute a corporate meeting of a religious society it is not necessary that a majority be present. If the meeting is regularly held, those present constitute a quorum, and a majority of them can pass a resolution.
    The presence of strangers will not vitiate the proceedings unless they voted and their votes were necessary to carry the resolution.
    What is sufficient evidence of the number of corporators.
    A mistaken statement in a petition,—held not ground for avoiding the order made thereon.
    Trial by the Court.
    The former proceedings in. this action are fully reported in 19 All. Pr., 105, where the decision at special term, upon the first trial, is given, and in 1 All. Pr., N. S., 214, where the decision at general term, reversing the former decision, is given.
    
      C. C. Langdell and James T. Brady, for the plaintiffs. .
    
      Wm. R. Martin, Wm. F. Allen, and L. B. Woodruff, for the defendants.
   Jones, J.

Upon a former trial of this action, there were four objections raised to the order made by the Supreme Court, authorizing the conveyance by plaintiffs to defendants of the property in question. Those four objections were: First. That the court had the power to order only a sale. Second. That the application was made by the trustees and not by the corporation. Third. That the order did not direct the application of the money arising from the sale. Fourth. That the transaction produced a dissolution and abandonment of the plaintiffs’ corporation, and not a continuance of it for the purposes of its qrganization. The justice, before whom the former trial was had, held these objections to be valid, and excluded evidence of such supreme court proceedings. . Judgment was consequently rendered for plaintiffs. Upon an appeal from such judgment, the general term held that each one of said four objections was untenable, reversed the judgment, and ordered a new trial, on the ground that error was committed in not admitting in evidence the record of the supreme court proceedings. -The new trial thus ordered came on before me. The general term has decided that the allegations in the petition, if true, are sufficient to give the supreme- court jurisdiction and authority to mate the order in question. On the trial before me, however,'plaintiffs introduced testimony with the view of showing that divers of the allegations of the petition were untrue, and claimed that if these allegations were untrue, the supreme court obtained no jurisdiction. The allegations, respecting which evidence was given, are—First. As to the inability of plaintiffs’ corporation to pay the liabilities, or meet the current expenses of the church. Second-As to the plan or terms of the projected union being agreed on by a joint committee appointed by the corporate "bodies respectively. Third. As to whether there were a sufficient number of corporators present at the meeting of September 29, 1862, to mate the action of that meeting binding. Fourth. As to there being twenty-eight pew owners and thirty-nine pew hirers. Plaintiffs claim that the allegations of the petition in these respects are untrue. I will examine the proof.

First. The current expenses of the church were, $4,800.00 Interest on the mortgage debt, 4,285.00

§9,035.00

Receipts from all sources, 5,900.00

$3,135.00

In addition to this, there were liabilities not secured by mortgage, (some of them in litigation,) amounting to about $12,000.00

Thus we have an annual excess of current expenses over receipts of $3100, and liabilities, (not secured by mortgage), amounting to $12,000. There was no income to meet this excess, and pay off this liability. There were no funds, and no resources, other than a resort to a sale or mortgage of the church edifice, wherewith to provide for the payment of the liability, andfor the keeping down of this excess. Under this state of facts, I think it may well be said, in the language of the petition, “ that they are unable to pay their liabilities, or meet the current expenses of the church.” There is no doubt that, by a sale of the church property, funds sufficient to meet the liabilities could be obtained. One of the objects of the application was, by the union of the two churches, the conveyance of the plaintiffs’ property, to defendants, and the bringing in of the defendants’ property, to provide for the payment of these liabilities, and. so to increase the prosperity of the united church as that the current receipts would keep down the current expenses, including therein interest on the mortgage debt. The petitioners do not say that their property, if thus sold, would not be sufficient to discharge their liabilities; all they say is that their refteipts and income are insufficient, either to provide for the payment of their liabilities, or to meet current expenses. I think the proof sustains this allegation. Indeed, if they kept on for a period of years, running behind in their current expenses and interest account, at the rate $3000 a year, the result would be that, after a while, the' proceeds of a sale would not discharge their liabilities. The plaintiffs claim that as a great part of an indebtedness of $18,000 is held by members of this church, who have not called for interest, such interest cannot be regarded as a liability. This indebtedness is however secured by bonds bearing interest on their face. The holders have never released their right to claim interest, and can any time call for payment of current as well as back interest.

Second. The evidence shows that the committee appointed by plaintiffs ' I confer with a committee of defendants» was not appointed by the corporate body'. I do not, however,, perceive that the jurisdiction of the court depends in any degree on this allegation. The only question, in this'respect, is whether at a corporate meeting the plaintiffs’ corporation adopted and ratified the action of its committee. If so, then the matter stands.as if the plan of union had, without the intervention of a committee, Been proposed in the first instance at such corporate meeting and then adopted. The plan in question was adopted at a legal corporate meeting of plaintiffs’ corporation.

.' Third. Was the action of that meeting binding ? There were but twenty corporators present at that meeting, far less than a majority of all the corporators. The plaintiffs claim that to constitute a corporate meeting, whose acts and resolution shall be binding, there must be present at least a majority of all the corporators. I think not. Where the corporators are indefinite, as in this case, then such of them as assemble pursuant to regular call, will constitute a quorum for the transaction of business, and a majority of said quorum can pass a resolution. It is' objected that some persons were present at the meeting who were not corporators. That fact will not vitiate the proceedings of the meeting unless it appears that such persons voted, and their votes were necessary to carry the resolutions which were passed. Fourth. The evidence sustains the allegation that there were but twenty-eight pew owners. As to whether there were more than thirty-nine pew hirers, does not satisfactorily appear on the evidence. The records of the' church seem to have been loosely kept, inasmuch as no record of pew owners or of pew hirers, containing appropriate' data as to when the parties became such owners and hirers, and as to when they ceased to be such, was produced in evidence. The evidence as to the number of pew hirers consists in the recollection of witnesses, aided by entries of payments for pew rents, giving the dates and amounts of the payments, with the number of the pew, and the name of •the person paying, without indicating for what period of time the payments were made. I think this evidence is insufficient to overcome the statement in the petition, verified by the president and secretary of the board of trustees, at a time when the facts must have been fresher in their minds than they could possibly have been in the minds of the witn esses at the trial.

Whether the number of pew hirers was thirty-nine or fifty-two is not important, since the allegation as to consent of the pew hirers may be stricken out of the petition without affecting the jurisdiction of the court. A .great amount of evidence was "taken as to the number of the corporators of plaintiffs’ corporation. I have deemed it unnecessary to determine the number, for, although it may be that a majority of the whole of .the members did not affirmatively authorize the proceedings, yet the evidence does not show that more than four or five objected. If I am right in my view that the.resolution of the meeting of September 29 was ample authority for the trustees to make this application, then the trustees having, under that authority, passed a resolution directing the application to be made, it is unnecessary to show an authority hy a majority of the whole number of corporators. If it appeared that a majority of the whole number objected to the application being made, then other questions would arise, which it is now unnecessary to discuss.

I have' thus considered all the grounds, arising out of the evidence dehors the supreme court record, upon which it is claimed that that court has no jurisdiction, and have come to the conclusion that the claim of no jurisdiction is untenable on any one or all of such grounds. Plaintiffs’ counsel, however, claims that the insertion, in the petition, of the allegations just considered, operated as a fraud on the supreme court, and, therefore, the order in question was void. The evidence before me establishes the truth of all the allegations except two. One of these two is the allegation as to the number of pew hirers. On this I have held that the evidence is too unsatisfactory for me to decide against the truth of the petition. The other is the allegation that the committee appointed by. the plaintiffs was appointed by the corporate body. The evidence shows a committee was appointed by plaintiffs ; that said committee conferred with a committee appointed by defendants, and agreed on the plan in question. It was a mere mistake, and perhaps an error of judgment, in stating that the committee was appointed by the corporate body. The mistake is too immaterial to justify a holding that, by reason thereof, the order is void as having been obtained by fraud. There certainly was no fraud intended, and, so far as I can see, no actual or legal fraud has been shown. Entertaining these views, it is not necessary to consider whether, after a party has acted in good faith upon an order made by a court upon the application of the trustees of a corporation, such corporation can claim the order to he void by reason of its trustees having committed a fraud on the court; or the more general question, whether one court has any right to hold the judgment or order of another court to be null and void be reason of a deceit having been practised on that court, or, if they have any such right, then, under what circumstances, or in whose favor, it is to be exercised.

Judgment for defendants, with costs.  