and freehold. These rights are distinct and separate, and do not necessarily conflict with each other. (Shaw v. Beveridge, 3 Hill, 26; Matter of Reformed Dutch Church, 16 Barb. 237; Voorhees v. Presbyterian Church of Amsterdam, 17 Barb. 103.)

§ 261. A lease in perpetuity of a pew confers only a right to the use of the pew during divine service, and the lessee takes his title in subordination to the more general right of the trustees in the soil and freehold, and subject to the right and power of the trustees to alter and repair the church. If, in making alterations or repairs, the pew is necessarily destroyed, the pew-holder cannot have trespass or ejectment. If the pew should be destroyed for convenience only, or wantonly and maliciously, the only remedy of the pew-holder, even then, against the trustees, would be an action for damages by way of indemnity for the loss. The presumption would be in favor of the good faith of the trustees, as agents or officers of the corporation, in altering the internal arrangements of the church, and yet the pew-owners would not be concluded by the exercise of an arbitrary and despotic will, on the part of the trustees, in determining the question of necessity, expediency and convenience. It is the duty of the trustees to carry out the reasonable and legal will and wishes of the corporation in a matter of this kind, and they will be presumed to have done so, in the absence of evidence to the contrary. (Voorhees v. Presbyterian Church of Amsterdam, supra; Cooper v. Presbyterian Church, Sandy Hill, 32 Barb. 222.)

§ 262. The seat or pew in any house or place of public worship, occupied by the owner or his family, is exempt from levy and sale on execution against the pew-owner, and the same cannot be made liable for the debts of the pewowner, by any legal process, so long as the same is occupied

by the owner or his family as aforesaid. (2 R. S. 307, Sec. 22; 2 Stat. at Large, 380.)

§ 263. An impression has obtained, to a considerable extent, that pew-holders in a church may be assessed by the trustees to defray the salary of the minister and the ordinary expenses of the society. This is erroneous. If the pews have been sold free of rent, the pew-holders are not liable to pay any assessment made upon the pews by the trustees for any purpose. There is occasionally an instance where such assessment is authorized by a special statute; but, without a special enactment, it is in no case allowed. (Trustees of First Presbyterian Congregation in Hebron v. Cruikshank, 8 Johns. 217.)

CHAPTER XXI.

RELIGIOUS SOCIETIES IN NEW YORK-SALE OF THE REAL ESTATE OF A RELIGIOUS SOCIETY-CONSENT OF THE COURT NECESSARY HOW OBTAINED-FORM OF PROCEEDING DIFFERENT

RULE AS TO MORTGAGES.

264. The general common law power of corporations in regard to the disposition of their property, real as well as personal, is co-extensive with that of natural persons. But with regard to religious societies or corporations in the State of New York, this rule does not apply. In this State no religious corporation can sell in fee any real estate, without the order of court. The powers given to religious societies are limited to purchase and hold real estate, and then to demise, lease and improve the same for the use of the con

gregation. This limitation of the corporate power to sell is peculiar to religious corporations. (2 Kent's Com. 282.)

§ 265. By the general incorporating act of the State it was made lawful for the chancellor, upon the application of any religious corporation, in case he might deem it proper, to make an order for the sale of any real estate belonging to such corporation, and to direct the application of the moneys arising therefrom, by the said corporation, to such uses as the same corporation, with the consent and approbation of the chancellor, might conceive to be most for the interest of the society to which the real estate so sold did belong. (Laws of 1813, Ch. 60, Sec. 11; 3 Stat. at Large, 694.)

266. This provision of the general incorporating act, however, did not apply or extend to any of the lands granted by the State for the support of the gospel, familiarly known as "Gospel and School Lots." The statute expressly excepted these lands from that provision of the act. No religious corporation can dispose of those lands by the consent of the chancellor or otherwise. (Ib.)

§ 267. The constitution of the State, adopted in eighteen hundred and forty-six, abolished the court of Chancery, and superseded the office of chancellor, and vested the powers, duties and functions of that court and officer in the Supreme Court. The consent and order of the Supreme Court may therefore be obtained, under the present arrangement, for the sale of the real estate of such religious corporations, instead of the Chancellor as under the old system. The county courts may also give the consent and grant the order, and exercise the powers in all cases where the real property of the society is situated within the county in which the county judges respectively reside. (State Const. Art. XXV, Secs. 5 and 6; Code of Procedure, Sec. 30, Sub. 9.)

§ 268. The application for the order allowing the sale of the real property of a religious society must be made by the corporation. It is not sufficient that the trustees apply for the order, but every member of the congregation entitled to vote for trustees must have an opportunity to be heard; and such preliminary action must be had as shall make the application that of the society. The opinions of the trustees in favor of the sale are of no moment, except as opinions of so many of the corporators.* (Wyatt v. Benson, 23 Barb. 327; but see Matter of St. Ann's Church, 23 Howard's Pr. Rep. 285; and also Madison Avenue Baptist Church v. The Baptist Church in Oliver street, 30 How. Pr. R. 455.)

§ 269. Should a resolution be passed by a majority vote, at a regular meeting of the society, to dispose of the real estate of such society, and it should subsequently appear to the court that the application was contrary to the views and wishes of a majority of the corporators-the regular voting members of the society-the court would undoubtedly withhold its assent to the sale of the church property. So on the contrary, it is probably no objection to the application that it was not authorized by an express vote of the corporators, when neither the good faith of the application nor the propriety of the proposed disposition of the proceeds is questioned. (Wyatt v. Benson, supra; Matter of St. Ann's Church, supra.)

There seems to be a conflict of authority as to the source of the application for the sale of the real property of a religious corporation. The general practice before the Supreme Court at special term, and before the county courts, is in accordance with the rule laid down in the text; and this would seem to be most in keeping with the spirit of the statute. But in the matter of the application of St. Ann's Church in Brooklyn, to mortgage their real estate, Justice EMOTT, sitting at special term, expressed the opinion that the vestry or trustees of a church might apply to the court to be allowed to sell the real estate of the church, without the actual concurrence of the society. And in the case of the Madison Avenue Baptist Church v. The Baptist Church in Oliver street, the Superior Court of the city of New York held, obiter, that the trustees might make the application for the sale of the real estate of a religious corporation irrespective of any vote of the corporators. The better way undoubtedly is, for the society, in all cases, to direct the application.

270. The court has power to make a provisional order giving a religious corporation leave to sell its real estate; for example, an order that the sale may be made for a certain price and for a certain legitimate purpose. But the court has no power to approve or authorize a sale for the purpose of closing up the existence of the society and distributing its property. The court cannot approve of any plan for the application of the proceeds of the sale of real estate, which does not regard the interests of the society as an organization to continue for the purposes of its creation. The trustees have no power to do this, and their powers cannot be enlarged by the court. (Matter of Brick Church, 3 Edw. 155; Wheaton v. Gates, 18 N. Y. R. 395.)

§271. The county court cannot appoint a receiver of the effects of a religious corporation, whether such corporation be insolvent or voluntarily dissolved. Even in case of a valid direction to apply the proceeds of real estate ordered to be sold, the court could not execute the duty through the agency of a receiver. The court can only direct the application of the proceeds by the corporation, and the proceeds cannot be legally distributed among the pewholders for one very simple reason, that they have no interest in the land upon which the church stands, and the rights, whatever they are, cease when the edifice is destroyed or becomes permanently unfit for public worship. (Wheaton v. Gates, supra.)

§ 272. A religious corporation has power to contract for the sale of its real estate, subject to the approval of the court, and, as soon as the sanction of the court is obtained, the corporation is bound by the contract. It is not neces

sary, and perhaps not desirable, that the sanction of the court should precede the negotiation of the contract. The power of the court in the matter is a regulating power, for the purpose of preventing a violation of the trust for the