Berrian v. Methodist Society

4 Abb. Pr. 424, 6 Duer 682

• Court: The Superior Court of New York City
• Decided: May 15, 1857
• Status: Published

Opinion

Bosworth, J.

—The defendant moves to set aside a judgment rendered against it by default, on the 26th day of March, 1852, for $2,507.99 damages and costs. The action was for moneys alleged to have been advanced by Cornelius Berrian, the assignor of the plaintiff, and was commenced by the service of the summons and complaint on the 28th day of February last, on Cornelius Berrian, who is described as president of the defendant’s Board of Trustees, and its managing agent. The defendant moves, not only to set aside the judgment, but the summons and the complaint, on the ground, among others, that Cornelius Berrian, alleged to be the president of the corporation, was not, at the time of the service of the summons and complaint, the president of the Board of Trustees, and that therefore the suit was not properly commenced.

The affidavits of both sides, although in conflict with each other, leave no doubt that, since some time in 1853, neither Cornelius Berrian, nor those alleged to be with him, trustees or other officers of the defendants, have in fact acted or been permitted to act as such.

John P. Concklin was the acting president of the defendant’s trustees, when this action was commenced. He and his associates were, so far as statutory formalities are concerned, regularly elected officers of the church and society, have acted as such, and have had, and now have, exclusive possession and control of the church edifice, and the temporalities of the society.

The persons who for over five years have met in the church edifice for worship, have elected the officers of the society, and appointed and supported its preachers, must be deemed for all the purposes of this motion as competent to appoint the trustees. And the trustees and officers appointed by them, in conformity with the provisions of the statute, and who have, in fact, acted and are continuing to act as such, are, at least, trustees and officers defacto; and on them alone, while such a state of things exists, can a valid service of process be made.

How much a want of conformity in their proceedings to the discipline of the society may affect the title of the acting trustees or their agents to their officers, cannot be investigated on this motion.

If the trustees and officers de facto are intruders, the proper proceedings to determine that question, and obtain such an adjudication and their removal, and a new election of officers and trustees in a lawful manner, must be taken and prosecuted elsewhere.

This court has no jurisdiction of such matters.

All the proceedings must be vacated, as being irregular, with $10 costs of this motion.