
    James W. B. Davie, on Behalf of Himself and all Other Members of the United Brethren’s Church on Staten Island, Similarly Situated, Appellant, v. Peter P. Heal and Others, Respondents.
    
      Injunction to prevent the execution of a resolution adopted by the votes of members worshipping at chapels connected with a parent church — where such practice has been acquiesced in for many years, and no property rights are involved, equity will not interfere '.
    
    The United Brethren’s Church is a religious corporation which was created in 1808 under chapter 79 of the Laws of 1801. The parent church is located at New Dorp. In 1873 and in 1877 chapels were established at Castleton Corners and at Giffords, the title to the respective properties being vested in the United Brethren’s Church, and there being no separate or independent incorporation of the chapels. The names of all persons admitted at the chapels to membership in the church were transmitted to the parent church at New Dorp and were there enrolled upon the records of said church as members thereof. The members who worshipped at the chapels were represented on the board of trustees who had charge of the temporalities of the church corporation, and also contributed to the funds of the corporation.
    From the time the chapels were established, the members who worshipped at such chapels voted at the meetings of the corporation without apparent question, objection or protest.
    In 1903, at a special meeting of the corporation, a resolution increasing the salaries of the pastors of the chapels was adopted by the votes of the members of the chapels, a majority of the members of the parent church present at the meeting having voted against the resolution. The right of the members who worshipped at the chapels to vote upon the resolution was not challenged at the meeting.
    In an action brought by a member of the parent church at New Dorp on behalf of himself and all other members of such church, against the church corporation and its trustees and the presidents and pastors of the chapels, to procure an injunction restraining the carrying out of the resolution on the ground that the memhers who worshipped at the chapels were not entitled to vote thereon, it was
    
      Held, without determining the strict legal right of the members who worshipped at the chapels to vote at the meetings of the corporation, that, as such members had been permitted to vote at the meetings of the corporation without question for many years and as no property rights were involved in the action, equity would not interfere to prevent the carrying out of the resolution.
    Appeal by the plaintiff, James W. B. Dávie, on behalf of himself and ail other members of the United Brethren’s Church on Staten Island, similarly situated, from a judgment of the' Supreme Court in favor.of the defendants, entered in the office of the clerk of the county of ¡Richmond upon the decision of the court, rendered after a trial at the. Richmond Special Term, dismissing the plaintiff’s complaint.
    
      John L. Hill [Robert L. Redfield with him on the brief], for the appellant.
    
      S. F. Rawson, for the respondents.
   Hirschberg, J. :

The plaintiff sues on behalf of himself and all other members similarly situated of the Moravian Church, known as the United Brethren’s Church on Staten Island. The defendants are the church and its trustees, together with the presidents and the pastors respectively of the mission chapels located at Castleton Corners and at Giffords on Staten Island, and the object of the action is to procure an injunction prohibiting the carrying out of a resolution increasing the salaries of the pastors at said chapels, adopted at a special meeting of the members of the church corporation on February 20,1902-At that meeting there were eighty-nine persons present and-voting, seventy of whom voted in favor of the resolution and nineteen against it; but it is the contention of the plaintiff that only stated attendants at services in the parent church edifice, located at Hew Dorp, were qualified voters, of whom only twelve were present, and whose votes were cast, two in favor and ten in opposition to the resolution. The resolution was accordingly adopted by the votes of thdse whose stated attendance at worship was either at the church edifices erected at Castleton Corners or at Giffords, and upon that fact is predicated the alleged invalidity of the resolution and the •claim to equitable relief.

The religious corporation at New Dorp was created in 1808, under chapter 79 of the Laws of 1801. In addition to its church building it owns considerable adjoining property, which- is used' for cemetery and other purposes. The chapel at Castleton Corners was established in 1873, and the one at Griffords in 1877, the title to the respective properties being vested in the United Brethren’s «Church, there being no separate or independent incorporation of the chapels. The names of all persons who are admitted to membership in the church at the chapels are transmitted by the respective pastors of the chapels to the church at New Dorp, and such names are there enrolled upon the records of said church as members thereof. Weekly collections are taken at each chapel, and a monthly statement or report made to the treasurer at ■ New Dorp of the receipts and disbursements. If there is a surplus it is paid to the treasurer; if there is a deficit it is paid by him. In addition to the weekly collections each member, whether attendant at New Dorp or at the chapels, pays the sum of two dollars per year to the general treasury. From the time the chapels were instituted the five members of the board of trustees having charge of the temporalities have been elected, two from New Dorp, two from Gastleton Corners and one from Cliffords; and the three elders who, with the pastors, constitute the board of elders, having charge of the spiritual concerns of the church, have been elected, one from each of the three congregations. During this entire period also the members who worship at the chapels have voted at the meetings of the corporations without apparent question, objection or protest, nor does it appear that at the meeting of February 20,1902, the right of any individual to vote was challenged in any manner, or that any protest against the same or objection thereto was made by the plaintiff or by any other person. The resolution was adopted in accordance with the uniform practice of the church members in the voluntary regulation of the executive affairs of the corporation on the theory that the members of the three congregations constitute but one religious organization, having a common interest and entitled to a voice in common.

It is not clear from the evidence whether the chapel members were legally entitled to vote, nor in the view I take of the case is it. necessary to determine the question. The learned- counsel for the appellant claim that the chapels were established under chapter 657 of the Laws of 1867, entitled “ An act to authorize the erection of free churches or chapels in certain cases.” This act was repealed by the Religious Corporations Law (Laws of 1895, chap. 723), section 6 of -which is the apparent substitute. for the law repealed. There is no evidence in the cáse showing that the chapels were established-under the act of 1867, and the learned trial justice has found as a fact that neither chapel was acquired for any of the purposes mentioned in section 6 of the act- of 1895 (supra). In this, state of the proof, and in view of that finding, it is unnecessary to-analyze the restrictions upon the voting rights of members of chapels or other branch religious institutions imposed by the two statutes referred to. It may be noted, however, that the learned trial- justice has also found as a fact that the stated attendants at the chapels are all actual members of the congregation and church at Mew Dorp, which finding can-hardly be said to be without some support in the voluntary acts of the officers arid members, by which, as recited in a resolution unanimously adopted by the trustees in 1892, the “ congregation in all its various parts in the worship .at New Dbfp, Castleton Corners and Giffords ” has been always recognized as “ constituting one organic church.”

But, as I have said, in the view taken of the rights of the parties to this controversy it seems unnecessary to determine the extent of the strict legal rights, if any, of the persons whose votes are now indirectly challenged by the plaintiff. There is no question of title to property involved, as his counsel admit in their brief. Mo question is presented such as might be raised in an attempt to incumber the property of the corporation by mortgages! The sole, underlying question relates to the current disposition of current funds, the annual distribution of annual contributions, in which the votes of the members now challenged may be easily regarded as a limitation placed by them upon the use of the contributions; and where all: who have contributed have been invited to a voice in the determination of the distribution it would be inequitable to permit subsequent-recourse to the courts for the purpose of invalidating the result, especially where that result has been reached without challenge or protest,.

The persons who have claimed and exercised the right to vote ar& not parties to the suit, and cannot of course be heal’d in their own. behalf. The plaintiff’s grievance is not so much with the fact that, the chapel members voted as it is with the way they voted. If, under the circumstances, the- courts could be successfully appealed to to interfere, the result would be intolerable. Hot only the vote-of 1902, but that of previous years could be assailed, and only a. statute of limitations could protect parties from loss who ¡may . have acted in good faith upon the. strength of a custom which appears to have been developed during more than a quarter of a century in a. spirit of commendable union and harmony. Whether the right to vote has been or could be conferred by such custom may perhaps-be doubtful, but there can be little doubt that the right to invoke the arm of a court of equity may be lost where the right is not-.promptly asserted, where its maintenance is in conflict with the-general principle of equity and where its enforcement can only accomplish a moral wrong.

I, therefore, advise that the judgment be affirmed.

Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.

Judgment affirmed, with costs.  