
    
      In re Court (alias Liberty) St. M. E. Soc. of Rome, Etc.
    
      (Supreme Court, General Term, Fourth Department.
    
    January, 1889.)
    1. Religious Societies—Consolidation.
    It is a sufficient reason for denying an order consolidating two religious organizations that, at the date of the execution of the consolidation agreement, the certificate of incorporation of one of them had not been proved or recorded.
    2. Same—Trustees—When Office Vacant.
    Under Laws N. Y. 1875, c. 79, § 2, providing that, whenéver a trustee of a religious corporation ceases to be a member of the church, congregation, or society, or ceases to statedly attend and support its services, he shall cease to be a trustee, a trustee, by becoming a corporator of a new church, ceases to be such trustee, and is without power to sign, on behalf of the church of which he was trustee, an agreement or petition for consolidation with another society.
    3. Same—Consolidation Agreement—Execution.
    If a trustee may remain such after becoming an incorporator and trustee of a new society, still an agreement and petition for consolidation, executed by four of the trustees of the old society, two of whom are trustees of the new one, are invalid.
    4. Same—Discretion of Court.
    Under Laws N. Y. 1875, c. 209, § 5; 1876, c. 176, § 3; 1880, c. 167 § 3,—providing that the supreme court may, if it deem proper, make an order for consolidation, it is in the discretion of the court to make the order, though the contract and petitions for consolidation are duly executed
    Appeal from special term, Oneida county.
    Laws N. Y. 1875, c. 79, § 2, provide: “Whenever a trustee elected under the provisions of said section three of the above-mentioned act [‘An act to provide for the incorporation of religious societies,’ Laws 1813, c. 60,] ceases to be a member of the church, congregation, or society, by removal or otherwise, or ceases to statedly attend upon and support its services, he shall at the same time, and for such cause, cease to be a trustee, and his place shall be declared vacant by a notice of the board of trustees to the church, congregation, or society, and said church, congregation, or society shall proceed to fill the vacancy as provided for in the above-mentioned act. ”
    Argued before Eollett, P. J., and Martin and Kennedy, JJ.
    
      Jenkins & 'Devereux, for appellants. Scripture & Backus, for respondents.
   Eollett, P. J.

Appeal from an order of a special term, granted October 8, 1887, on notice vacating an order of a special term granted November 11, 1885, without notice, consolidating the Court {alias Liberty) Street Methodist Episcopal Society of Borne and the First Wesleyan Methodist Church of Borne, under the corporate name of the “First Wesleyan Methodist Church of Bpme, N. Y.” July 24,1862, a religious corporation was duly incorporated (pursuant to 2 Bev. Laws 1813, p. 212, § 3, c. 60) under the name of “The Trustees of the Court-Street Methodist Episcopal Church in Borne. ” The corporators professed the faith of the Methodist Episcopal Church. December 30, 1862, the corporation received, under the name of the “ Court-Street M. E. Society,” a grant of a church edifice and lot, on Court street, in Borne, from the Court-Street Baptist Society, in Borne. In 1862 the county of Oneida was within the Black Biver conference of the Methodist Episcopal Church, and remained therein until 1868, when the Central New York conference was formed, which included said county; and it remained therein until 1872, when the Northern New York conference was organized, which embraced said county, and within which conference said county now is. In April, 1863, said church applied to the Black Biver conference for a preacher. Its application was granted, and the church then became and continued a member of that conference and its successors, until 1885, receiving its preachers from said conference, and in all respects recognizing the jurisdiction of the conference. The church continued to own and occupy its property on Court street until October 7, 1878, when it was exchanged for a church edifice and lot on Liberty street, and thereafter the corporation (the civil organization) and the church (the religious organization) were know'n as the “Liberty-Street Methodist Episcopal Church in Rome;” but it does not appear that the corporate name vgas changed pursuant to the statute, in April, 1884, the Northern New York conference assigned the Rev. Ebenezer Arnold as the preacher in charge of this church, and he entered upon the discharge of his duties; but before the expiration of the year many of the members of the church and congregation became greatly dissatisfied with him, and in April, 1885, 61 of the parishioners petitioned the conference not to continue him in charge of their church for another year, but the petition was not granted, and he was assigned as the preacher in charge for the next ecclesiastical year. In the language of the referee: “Erom that time forward'until October 6,1885, troubles and disagreements continuously existed between him and such persons, and there was great lack of obedience by him and such members to those cardinal doctrines and behests of their denominational faith which all professed,—to promote peace and unity; to bear one another's burdens; to prevent each others stumblings; * * * and to pray and sympathize with each other.”

Erom April, 1885, to October 6,1885j David Byam, Adin H. Butler, Henry N. Perry, Charles Shepard, and Jesse M. White, five in all, were the trustees of said corporation. A few days before October 6, 1885, 73 of the 85 members of said church signed a paper called a “Pledge,” of which the following is a copy: “We, the undersigned, members of the Liberty-Street M. E. Church, believing that the interests of said society would be promoted by a change of our church name, relations, and discipline, pledge ourselves to change our name to the Eirst Wesleyan Methodist Church of Rome, and to adopt the discipline of the Wesleyan Church of America, reorganizing as such, taking our church property with us.” This declaration of intention clearly discloses the motives which actuated these persons in subsequently attempting to organize another religious corporation, and obtain a consolidation of it with the old corporation, October 6, 1885. Thirty-six of the members of the church met at the dwelling-house of one of the members, and signed a certificate of incorporation, by which they assumed to incorporate the First Wesleyan Methodist Church of Rome. Before this date no such corporation or church had existed in Rome. This meeting was not held pursuant to any public notice, nor at a place where the persons who met had been accustomed to meet for stated public worship. The execution of this certificate was proved by a subscribing witness October 20, 1885, and the certificate was recorded October 24,1885, in the office of the clerk of the county of Oneida. In this certificate it is recited. “We, the undersigned, four of the trustees and sevénty-one of the late members of the Liberty-Street M. E. Church of the city of Rome, Oneida county, N. Y., and whose naipes and seals are affixed to this instrument, do hereby certify that on the 6th day of October, 1885, the male members of full age, worshiping in the church aforesaid, and all being members of said Liberty-Street M. B. Church aforesaid, save fourteen only, and all the trustees save one, and all the stewards save three, believing the interests of said members and society will be promoted and enhanced by a change of our church relations, and desiring to withdraw from the discipline of the M. E. Church, and unite with and be subject to the discipline of the Wesleyan Church of America, taking our church property with us, and belonging to a church in which divine worship is celebrated according to the rights of said church not already incorporated, met at No. 9 Court street, in the city aforesaid, for the purpose of incorporating themselves, and did then and there,” etc. David Byam, Adin'H. Butler, Charles Shepard, and Jesse M. White, four of the members and trustees of the old church, signed this certificate, and Byam and White were named in the certificate as trustees of the new church. October 6,1885, an agreement to consolidate these two corporations (if they were two legal ones) was signed by David Byam, Adin H. Butler, Charles Shepard, and Jesse M. White, four of the trustees of the old church, and by all of the trustees of the new church, by which it was recited that the new church had neither property nor debts, and that all of the property of the old church should be conveyed to the consolidated church, which was to he under the discipline of the Wesleyan Church of America.

October 23,1885, Adin H. Butler, David Byam, Charles Shepard, and Jesse M. White, still assuming to act as trustees of the old church, signed and verified a petition to the supreme court for the consolidation of the two corporations, and on the same day the seven trustees of the new church signed and verified a like petition. Upon these petitions an order was granted at special term, consolidating the corporations. Ffovqmber 20, 1885, Henry FT. Perry (who was one of the trustees of the old church) and four other members of the church signed and verified a petition for the revocation of the order of consolidation. Upon the matter coming on to be heard it was referred to a referee to take evidence in respect to the questions of fact in dispute, and to report with his opinion. A great amount of evidence was taken, the printed record containing 292 pages. The referee reported that the attempted consolidation was illegal, and that the order of consolidation should be vacated, which report was confirmed by the court.

' In this state the purposes for which corporations can be organized are specified in the statutes, and we know of no statute authorizing the formation of a religious corporation for the purpose of consolidating it with another, for the ultimate end of acquiring the property of the other, and applying it to the maintenance of a church of a different polity, and with a somewhat different faith; nor were the consolidation statutes designed to authorize the consolidation of an existing religious corporation with one organized solely for the purpose of consolidation, but they were designed to enable existing religious corporations, organized in good faith, for the advancement of religious interests, and for a time carried on for such purposes, to consolidate when it becomes apparent that such interests can be better advanced by the union of the corporations.

On the 6th day of October, 1885, the date of the execution of the consolidation agreement, the First Wesleyan Methodist Church of Rome was not a legal religious corporation, because the execution of its certificate had not been then proved or the certificate recorded. Burt v. Farrar, 24 Barb. 518; Mining Co. v. Woodbury, 14 Cal. 425, 8 South. Law Rev. (N. S.) 528; Childs v. Smith, 55 Barb. 45, which was reversed on another question by the court of appeals, 46 N. Y. 34, which court, in considering whether a corporation is legally organized before its certificate of incorporation is filed or recorded, said: “If the parties meant such an organization as would create a corporation de jure, which could successfully maintain itself against an inquiry on the part of the state, then it is evident that the time had not, at the commencement of this action, arrived, at which the $2,000 became due and payable; for the parties had neglected to file certificates of association, in accordance with law.”

While these serious defects of organization may not prevent a corporation from having, for some purposes, a legal existence until annulled by an action brought for that purpose, yet such defects are a sufficient reason for refusing an order carrying into effect the proposed consolidation, for from such a precedent great wrongs and mischiefs might easily flow. But if the First Wesleyan Methodist Church of Borne became a religious corporation October 6,1885, David Byam, Adin H. Butler, Charles Shepard, and Jesse M. White, four of the members and trustees of the Liberty-Street Church, became corporators, and two of them, Byam and White, trustees of the Wesleyan Church, by which act the four ceased to be members and trustees (section 2, c. 79, Laws 1875; Baptist Church v. Noe, 12 How. Pr. 497) of the Liberty-Street Church, and Byam and White were without power to sign the consolidation agreement or the petition for the consolidation of the churches in behalf of the Court (alias Liberty) Street Church. Unless Byam and White were trustees at this time, the agreement and petition were signed by not one legal trustee.

When the majority of the trustees of one corporation are also the trustees of another corporation, boards of trustees so constituted cannot enter into a valid contract for the consolidation of the corporations. Stokes v. Phelps Mission, 47 Hun, 570; Railroad Co. v. Railway Co., 11 Daly, 373; Wardens, etc., v. Rector, etc., 45 Barb. 356; San Diego v. Railroad Co., 44 Cal. 106; Pearson v. Railroad Co., 28 Alb. Law J. 366. So, if the position could be maintained that the Wesleyan Church was legally incorporated October 6, 1885, with Byam and White members of the board of trustees, and if it could be maintained that Byam and White still remained trustees of the Court-Street Church, the contract and the petitions for the consolidation of the two were not legally executed.

Though a legal contract and petitions for the consolidation of two existing legal religious corporations be duly executed and presented to the court, it may, in its discretion, give or withhold an order of consolidation. The statutes_ provide: “The supreme court may, in case it shall deem it proper, make an order for the union and consolidation of such corporations, determining all the terms, conditions, and provisions thereof. ” Section 5, c. 209, Laws 1875; section 3, c. 176, Laws 1876; section 3, c. 167, Laws 1880. We see no occasion for doubting that the special term wisely exercised its discretion in withholding its confirmation of the attempted consolidation. The order is affirmed, with costs. All concur.  