ious, charitable, benevolent, or educational object conducted by it, or in connection with it, or with such denomination, and they shall not use such property or revenues for any other purpose or divert the same from such uses. By-laws duly adopted at a meeting of the members of the corporation shall control the action of its trustees.

But this section does not give to the trustees of an incorporated church any control over the calling, settlement, dismissal or removal of its minister, or the fixing of his salary; or any power to fix or change the times, nature or order of the public or social worship of such church, except when they are also the spiritual officers of such church.

[L. 1813, ch. 60, § 4; R. S., 8th ed., 1885.
L. 1822, ch. 187, § 1; R. S., Sth ed., 1892.
L. 1835, ch. 90, § 8; R. S., Sth ed., 1893.
L. 1875, ch. 79, § 4; R. S., 8th ed., 1904.
L. 1876, ch. 176, § 1; R. S., 8th ed., 1909.
L. 1876, ch. 329, § 6; R. S., 8th ed., 1911.

This section, the next section, and §§ 11, 12, 29 and 30 of the general corporations law, cover by general language, applicable to all religious corporations, the specific provisions of existing law, as to powers of trustees of incorporated churches, as follows:

1. To recover, hold and enjoy all property, etc., belonging to the church;

2. To purchase and lease other property for the use of the church;

3. To repair and alter churches and erect others if necessary;

4. To erect schoolhouses, parsonages and other buildings;

5. To make rules and orders for managing the temporal affairs and to dispose of moneys;

6. To regulate and order renting of pews.

7. Perquisites for cemetery grounds;

8. To appoint clerk and treasurer and require treasurer to give bonds; 9. Prescribe duties of clerk and treasurer.

The prohibitions against diversions are as broad and comprehensive as any of the provisions of the present law.

The last clause is new.

Relation of trustees to corporation.-Although by the language of several acts repealed by this chapter, the trustees were constituted the corporation, the courts held that the corporation consisted of the qualified voters (People's Bank v. St. Anthony's Ch., 109 N. Y. 512, and cases cited under § 2), and, this chapter expressly provides that as to future incorporations the members shall constitute the corporation. See §§ 31, 83, post.

The vestry or trustees do not sustain to the corporation the relation of a private trustee to a cestui que trust. They are the trustees only in the sense in which the directors of a civil corporation are such. Robertson v. Bullions, 11 N Y. 243. They are its managing agents and may act for it as fully as the directors or agents of other corporate bodies. Matter of St. Ann's Church (Sp. T.), 14 Abb. Pr. 424.

Powers of trustces to act.-All powers directly conferred by statute, or impliedly granted, may be exercised by the directors. Beveridge v. N. Y. E. R. Co., 112 N. Y. 22.

But trustees can only bind the corporation when acting as a board duly assembled. The individual action of a majority or the whole number will not bind the corporation. People's Bank v. St. Anthony's R. Cath. Ch., 109 N. Y. 512; Landers v. The Frank St. M. E. Church, 114 N. Y. 626; Hart v. Trustees, etc., 17 Jones & Spencer, 523.

The corporation is only bound by the action of a majority of the whole number of trustees, required by the statute. Moore v. Rector (Sp. T.), 4 Abb. N. C. 51. A director can not vote by proxy. Craig Med. Co. v. Merchants' Bank, 59 Hun, 561.

Whenever, under the provisions of any of the corporate laws, a corporation is authorized to take any action by the agreement or action of its directors, managers or trustees, such agreement or action may be taken by such directors, regularly convened as a board, and acting by a majority of a quorum, except when otherwise expressly required by law or the by-laws of the corporation and any such agreement shall be executed in behalf of the corporation by such officers as shall be designated by the board of directors, managers or trustees. (Gen. Corp. L § 39, ante.)

Confirmation of action of trustees. If the action of the trustees is sanctioned by a majority of members present at a meeting regularly held, it will not be necessary to show that they were a majority of all the members. Madison Ave. Bap. Ch. v. Baptist Ch. in Oliver St. (Sp. T.), 32 How. Pr. 335; reversed on different grounds, 46 N. Y. 131.

De facto trustees.-A contract made with trustees de facto in possession, by one having no knowledge of the illegality of their election binds the corporation. Ebaugh v. German Reformed Church, 3 E. D. Smith, CO.

Trustees de facto of a religious society whether such society be incorporated or not may maintain an action against a trespasser for an injury to the meeting house of the society, but they can not maintain an action against persons who are in the actual possession of the land and the house of worship thereon, under a claim that they are irustees to and represent an incorporated society which owns the same. Green v. Cady, 9 Wend. 414.

Persons claiming to be the trustees of a religious society and who have not been regularly admitted to the possession of the church can not maintain an action to restrain other persons claiming to be its

trustees and in possession of the church from acting as such trustees. The North Baptist Church v. Parker, 36 Barb. 171.

Powers after having been ousted.-A committee of vestrymen who have been appointed to perform certain duties relating to the corporation, have no power, after having been ousted from office, to mandamus an officer of the corporation to perform an act in recognition of an act done by them. Presbyterian Church v. Blackhurst, 60 Hun, 63.

Iiability of trustees.-Not subject to liability for debts and assessments on church property. People v. The Mayor, 63 N. Y. 291. But they are liable when they divert the investment of trust funds from such securities as are authorized by law. Matter of Congregational Church, 6 Abb. N. C. 398.

When authority can be questioned.-Not in a collateral proceeding. Trustees, etc., v. Hills, 6 Cowen, 23; M. E. Church v. Pickett, 19 N. Y. 282; Jackson v. Nestles, 3 John. 115.

Title to office. Title to the office can only be questioned by a proceeding in the nature of a quo warranto. Parish of Belleport v. Tooker, 29 Barb. 256; People v. Lacoste, 37 N. Y. 192; People v. Farrington, (Sp. T.), 22 How. Pr. 294; Hartt v. Harvey (Sp. T.), 32 Barb. 55; Reis v. Rohde, 34 Hun, 161.

The question as to title to the office can not be submitted to arbitration. Wyatt v. Benson, 23 Barb. 327.

Nor can it be tried in an action of ejectment. Concord Society, etc., v. Stanton, 38 Hun, 1; Parish of Belleport v. Tooker, 29 Barb. 256; Jackson v. Nestles, 3 John. 115; North Bap. Ch. v. Parker, 36 Barb. 171. Fossession of property.-The trustees have a right to the possession of the church property, even as against a majority of the corporators. First M. E. Church of Attica v. Falkins, 3 T. & C. 279; People v. Runkle, 8 John. 464.

As to powers of trustees in relation to mortgages and sale of real property, see § 11, post, and cases cited.

As to the diversion of the corporate property, see note of § 4, ante. As to powers of trustees in relation to pew holders, see cases cited under that head in notes to § 4, ante.

Actions by and against trustees.-An action or proceeding instituted by the trustees of a religious corporation must be in the corporate name. Bundy v. Birdsall, 29 Barb. 31; People v. Fulton, 11 N. Y. 94.

A minority of the trustees who are loyal to the church or denomination may enjoin the majority who are attempting a diversion of its temporalities. First Reformed Pres. Ch. v. Bowden, 14 Abb. N. C. 357.

Trustees of a religious corporation who cease to be members of the church, cease to be trustees of such church, and may be restrained from further action as such. Id.

An injunction will not lie to restrain the regular action of the trustees. Solomon. Congregation, 49 Iow. Pr. 263.

But they may be restrained from diverting the temporalities of the church, from the denomination to which the church belongs. See note to § 4. And even prior to 1875, ch. 79, they could be restrained from diverting property held subject to particular trusts. Kniskern v. Lutheran Ch., etc, 1 Sand. ch. 439, and cases cited under § 4, "Uses and Trusts."

Ministers.-Section 5 provides that the control of the temporalities shall not give to the trustees the power of calling, settling or removing a minister, or of fixing his salary.

The vestry of an Episcopal church, subject to the canons of the church, may elect a rector, and fix his salary. See § 32, post.

The trustees of a Greek church are given power to fix and change the salary of the rector. See § 61, post.

The salary of a minister of a Reformed Presbyterian church can only be fixed by the congregation. See § 65, post.

The trustees of churches generally are prohibited from settling or removing a minister or fixing his salary, without the consent of a corporate meeting. See § 90, post.

Where no provision is made by the statute authorizing the trustees or the corporators to settle or remove a minister or to fix his salary, the matter will be subject to the rules and canons of the denomination to which the church belongs.

Our law requires no ceremony to establish the relation of pastor and congregation. "Induction" or "institution" in the sense of the English ecclesiastical law are unknown to our law, and will not be required unless it is the positive rule of the ecclesiastical body to which the pastor belongs. Youngs v. Ransom, 31 Barb. 49.

The churchwardens and vestrymen of a Prot. Epis. Ch. have the exclusive power of calling and inducting a minister. "A call" consists

in a power to fix the salary as well as to make a contract with the rector and deliver him possession of the church. Humbert v. St. Stephen's Ch., 1 Ed. Ch. 308.

A minister of a Protestant Episcopal church can only be removed, without his consent, by the bishop of the diocese. Youngs v. Ransom, 31 Barb. 49.

The court will not inquire whether a bishop is acting discreetly in removing a minister, but merely whether the bishop has the power to act. Walker v. Wainwright, 16 Barb. 486.

The only ground upon which a civil court can question the action of the bishop in removing a minister is that it may affect his civil rights. Walker v. Wainwright, 16 Barb. 486.

The action of the church judicatory in deposing the minister of the church is not subject to review in the civil courts. Isham v. Fullager (Sp. T.), 14 Abb. N. C. 363.,

The trustees of a M. E church may be mandamused to receive a preacher appointed by the bishop. People v. Steele, 2 Barb. 397; People ex rel. Peck v. Conley, 42 Hun, 98.

A "call" from a Presbyterian congregation to a minister drawn in the words prescribed by the discipline of the church, and signed by three elders and trustees, is to be regarded as the act of the congregation. Paddock v. Brown, 6 Hill, 530.

The ministers of an incorporated church can not be called and settled by the church and communicants only, but the assent of the trustees is necessary, also of the electors if he is to be paid from their contributions. Lawyer v. Cipperly, 7 Paige, 281.

Trustees are authorized to pay the salary of a minister regularly called. Miller v. Gable, 2 Denio, 492.

The salary of a minister can only be fixed in the manner prescribed by the statute. Pendleton v. Waterloo Baptist Ch., 49 Hun, 596.

Where the salary of a minister is not fixed as prescribed by the statute, no contract obligation is imposed upon the church. Landers v. Frank St. M. E. Church, 97 N. Y. 119; overruling 15 Hun, 340.

The trustees should withhold their assent to the employment of a minister, though selected by the majority, if it would destroy the harmony of the church. 5 Sand. Ch. 666.

If after the surrender of a lease, the pastor of the former lessee enters the church and insists on preaching, the lessor is justified in having him removed by force from the church, using such force only as is necessary, if after notice he refuses to leave the same. Conway Carpenter, 80 Hun, 429.

The trustees of the congregation have no right to forcibly eject a minister from a parsonage of which he has possession, although he has been suspended by the conference from his regular duties as a minister, and he may recover damages for the assault. Brister v. Burr 120 N. Y. 427.

Mandamus will lie to put a minister in possession of a pulpit to which he has been assigned by the bishop, and from which he has beer excluded by the trustees on the grounds of incompetency. People v Trustees First M. E. Ch., 3 N. Y. St. Rep. 372.

The decision of the highest tribunal of the church is conclusive as to the right of a minister to preach to a particular congregation, and where subscription has been made to the support of his ministry, a decision of a subordinate tribunal will not relieve the subscriber from his liability to pay his annual subscription. Dieffendorf v. Reformed Church, 20 John. 12.

A subscription to pay the salary of a minister so long as he shall administer the gospel and the subscriber shall live within four miles of the meeting-house, is valid. Religious Soc. v. Stone, 7 John. 112.