
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. JUSTE LANCHANTIN and Others, Plaintiffs and Appellants, v. PIERRE A. LACOSTE and Others, Defendants and Respondents.
    
      Religious Corporations — Election of Officers — ■Quo warranto — Presumptions.
    In an action in the nature of a quo warranto, those who hold the certificate of election to the office, and who are in possession of the office, are to be presumed rightfully and legally in possession. The presumptions are that the presiding officer did his duty in receiving- the votes, counting them, and giving the certificate of election. To overcome this presumption, the Relator must show by proper evidence the contrary to be true, &c.
    This is an appeal from an order of tbe Supreme Court, granting a new trial. Tbe action is in tbe nature of a quo warranto, to try the relative rights of the Relators and the Defendants to tbe offices of warden and vestry-men of tbe French church Du St. Esprit, in tbe city of New York, and was tried before Mr. Justice E. Darwin Smith and a jury.
    Under tbe direction of tbe Court a verdict was rendered for tbe Plaintiffs, and judgment was entered thereupon. The Defendants appealed to the General Term, where the judgment was reversed, and a new trial ordered. The Plaintiffs appealed to this Court from the order of the General Term, giving the usual stipulation.
    Tbe complaint alleges that, at an annual election of churchwardens and vestry-men of said church, held on Easter Monday, the 17th of April, 1865, pursuant to notice thereof given by tbe rector, and pursuant to tbe statute, the Relator, Lanchantin, was elected church-warden, and the other Relators were elected vestrymen of the said church.
    The complaint further states, in substance, that Lacoste and the other Defendants, as church-warden, and vestry-men 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.
    It further states that the Relators are rightfully entitled to hold and exercise said offices, and that the Defendants have usurped, intruded into, and unlawfully held and exercised, and still do unlawfully hold and exercise the same.
    It still further states that said church is a religious Episcopal corporation, formed and organized under the laws of this State.
    In their answer, the Defendants join 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 is a religious Episcopal corporation, formed under the laws of this State.
    They allege, in addition, that they have been lawfully elected to the respective offices held by them, and that they have since held and used said offices, as they have a lawful right to do.
    On the trial the Defendants introduced no testimony after the Plaintiffs rested, and the Court directed a verdict for the Plaintiffs.
    The facts of the case material to its decision, and not stated above, appear in the opinion.
    
      Wheeler H. Peclcham, of counsel for Plaintiffs and Appellants.
    
      A. J. Pa/rker, of counsel for the Defendants and 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 vestry-men 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 vestry-men), “therector . shall preside, and receive the votes of the electors, and be the returning officer, and shall enter the proceedings in the book of the 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 Re-lators, 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 Gueutal were elected wardens, and that the other Defendants were elected vestry-men. By vir-tlie 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 prima 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 the 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 certificate 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.

Tbe Plaintiffs, to overcome tbe presumption created against tliem by tbe certificate of tbe rector, examined eighteen witnesses. Tbe examination of fifteen of them was confined to tbeir own qualifications as electors. One of tbe remaining three was not examined as to tbe qualifications of any electors.

Tbe two others were examined with reference to tbe qualifications of particular voters, not exceeding in all thirty, including those who voted for tbe Delators, and then were asked some general questions with reference to tbe remaining voters as a whole.

One of these witnesses was asked tbe following question:

“ Q. Those other individuals who came up and voted, and did not vote £ your ticket’ ” (i. e., tbe Delator's), “ bad you seen any of them at that church for more than a year preceding that election ?
“ A. Wot that I recollect.”
On bis cross-examination be says:
“ Q. Do you profess to be able to state from your recollection all you have seen attend there ?
“ A. Wot Tyy any means.”

He gives only his recollection at best.

This is all tbe testimony given by this witness with reference to tbe voters not specially named. Tbe other witness swears as follows:

“ Q. "VVhat persons did you see vote that printed ticket ” (i. e., tbe Defendants’), “whom you knew personally, whether they were voters or not?
“ A. There is only one, I jpresvme, that voted that ticket that is á pew-holder.”

The presumption of the witness is of no value; and if it were of value, it only relates to one of a class of equally inqportant 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 was then asked the following question :

<! Q. Ton may 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 instructions 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 yon 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 is in the case with reference to the qualifications of about one hundred and thirty-eight 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.

Judgment absolute for Defendants.

JOEL TIFFANY, State Eeporter.  