By the Court, Beardsley, J.
This information was filed in December, 1844. It alleges that Phillips, one of the defendants, had usurped the office of trustee of the religious society, incorporated by the name of B’Nai Jeshurun, and that for forty days and more then last past, he had unlawfully held and executed said office. The holding is confessed by Phillips, but he denies the usurpation; and in justification he sets up in his plea that having, in 1841, been duly elected to and taken upon himself the office of trustee in said corporation, for a term which expired on the 11th day of October, 1844, he held over and continued in said office from the day last mentioned, for the causes stated and set forth in the plea. This, he alleges, he had good right to do under the authority of an act passed the 15th day of February, 1826. (Laws 1826, p. 34, 3 R. S. 215.)
6 I do not regard it as at all clear that this statute applies to such a case as is attempted to be made by the plea; but this question was not made on the argument, and for the present purpose it is unnecessary to express any final opinion upon it. Conceding the applicability of the statute, the plea is still defective, for it fails to- show that the defendant had any legal right to hold over after the 11th of October, when his regular official term expired.
The fact that no person had been chosen in his stead, was indispensable to the right set up by Phillips, for without this it cannot be pretended the statute authorized him to hold over. But such a case is not made by his plea. It is true it alleges that an election was held on the 11th of August, 1844, to supply [395]*395the vacancy which was to occur the succeeding October, by the expiration of Phillips’ term of office, and it aims to show that no person was then chosen for that purpose. Let this be conceded, (although it is only conceded for the sake of the argument, as the plea does not show it,) and it by no means follows that another election was not held, and a choice made, previous to the 11th of October. An election might have been called, and held on any day, not less than six days before the vacancy was to occur. (Act of 5th April, 1813, 3 R. S. 209, § 6.) Phillips sets up a right to hold over after the expiration of his regular official term, and on that ground attempts to justify his continuance in the office: he was therefore bound to show clearly that no one had, at any time, been chosen to succeed him. The plea fails to do this, and is therefore bad. The people are, accordingly, entitled to judgment of ouster against the defendant, Phillips. (2 R. S. 585, § 48.)
The principal question is between Hart and Ritterband, each of xvhom contends that he xvas duly chosen a trustee in the place of Phillips, at the election held on the 11th of August, 1844. The information alleges that Hart xvas chosen on that occasion, (2 R. S. 582, §§ 30, 31,) but that Ritterband claims to be entitled to the office, for which cause he is made a party defendant. (§ 45.) Ritterband, in his plea, denies that Hart xvas chosen, and alleges that he was himself elected, for which cause he admits that he claims to be such trustee.
In his plea Ritterband states that an election xvas duly held on -the 11th of August, for the choice of a trustee in the place of Phillips, and he admits that of the votes received by the inspectors, Hart had a greater number than himself, although he alleges that a large number of votes xvere offered to be given for him (R.) by qualified voters, and which, had they been received, would have given him a number exceeding those given and received for Hart; but he states that said votes, so offered for him, were rejected by the inspectors, xvho refused to receive or canvass them, for a cause xvhich is charged by him to be illegal.
There are various replications to this plea, some of which [396]*396are demurred to, and thus the sufficiency of the plea is directly drawn in question.
It is not suggested in the plea that any of the votes given for Hart were by illegal voters; and of the whole number of votes given and received by the inspectors, the plea admits that a greater number were cast for Hart than Bitterband. This concession seems to me fatal to the claim that Bitterband was chosen at that election. Legal votes may have been rejected so that no one was rightfully chosen, and a new election would be proper; but certainly no one could have been elected who received a minority only of the legal votes which were actually given and received at the election in question. (In the matter of the election of Directors of the Long Island Rail-Road Co., 19 Wend. 37; Angeli & Ames on Corp. 73.)
Judgment must therefore pass against Bitterband, as he shows no title to the office.
The only question which remains has reference to Hart, who is alleged, in the information, to have been duly chosen a.trustee at the election of the 11th of August. That he was chosen is not, in terms, denied by the defendant Phillips; but this decides nothing, for it is directly traversed by the defendant Bitterband. His plea, although it fails to show that he was duly elected, is quite sufficient as a denial that Hart was chosen. The election of Hart is therefore strictly in issue upon this plea, as it also is upon the fifth replication. Upon this issue the people hold the affirmative, and they are not entitled to judgment upon it unless the election of Hart is fully established.
Of the votes given and received by the inspectors of the election Hart had a greater number than Bitterband, and if none but illegal votes wore rejected Hart must have been duly chosen. But twenty-eight votes were offered to be given for Bitterband which were rejected by the inspectors : if these had been received and allowed in his favor he would have had a clear majority over Hart.
The issue has not been tried by a jury, but a stipulation in the nature of a special verdict has been entered into by the parties. By this certain matters are admitted; 1. “ All the facts [397]*397settled by the pleadings which terminate in demurrers.” 2. Sundry by-laws and other matters which are specified in the stipulation.
That clause of the stipulation by which all facts settled by the pleadings are admitted, is very liable to be misapprehended. The plea of Ritterband, so far as it assumes to show that he was chosen a trustee, is insufficient, and it can hardly be said, with propriety, that any facts are settled by such a plea or by replications thereto which are met by demurrers. At all events, it is not unlikely that the parties and their counsel may have understood this branch of the stipulation somewhat differently from the court. This is one reason for not proceeding in the present case to a judgment on the alleged right of the relator; nor ought that to be done until we are informed of the particular ground on which the twenty-eight votes were rejected. This does not clearly appear by the stipulation, as convenience, at least, requires that it should. In this proceeding the court are not bound to render judgment upon the right of the relator, as they are upon that of the defendants: it may be done or omitted “as justice shall require.” (2 R. S. 582, § 31.) And it seems to me it may with, great propriety be left for final adjudication on a direct proceeding against him if he shall think proper to enter into the office which will be vacated by the judgment against Phillips and Ritterband.
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By the Court, Beardsley, J.
This information was filed in December, 1844. It alleges that Phillips, one of the defendants, had usurped the office of trustee of the religious society, incorporated by the name of B’Nai Jeshurun, and that for forty days and more then last past, he had unlawfully held and executed said office. The holding is confessed by Phillips, but he denies the usurpation; and in justification he sets up in his plea that having, in 1841, been duly elected to and taken upon himself the office of trustee in said corporation, for a term which expired on the 11th day of October, 1844, he held over and continued in said office from the day last mentioned, for the causes stated and set forth in the plea. This, he alleges, he had good right to do under the authority of an act passed the 15th day of February, 1826. (Laws 1826, p. 34, 3 R. S. 215.)
6 I do not regard it as at all clear that this statute applies to such a case as is attempted to be made by the plea; but this question was not made on the argument, and for the present purpose it is unnecessary to express any final opinion upon it. Conceding the applicability of the statute, the plea is still defective, for it fails to- show that the defendant had any legal right to hold over after the 11th of October, when his regular official term expired.
The fact that no person had been chosen in his stead, was indispensable to the right set up by Phillips, for without this it cannot be pretended the statute authorized him to hold over. But such a case is not made by his plea. It is true it alleges that an election was held on the 11th of August, 1844, to supply [395]*395the vacancy which was to occur the succeeding October, by the expiration of Phillips’ term of office, and it aims to show that no person was then chosen for that purpose. Let this be conceded, (although it is only conceded for the sake of the argument, as the plea does not show it,) and it by no means follows that another election was not held, and a choice made, previous to the 11th of October. An election might have been called, and held on any day, not less than six days before the vacancy was to occur. (Act of 5th April, 1813, 3 R. S. 209, § 6.) Phillips sets up a right to hold over after the expiration of his regular official term, and on that ground attempts to justify his continuance in the office: he was therefore bound to show clearly that no one had, at any time, been chosen to succeed him. The plea fails to do this, and is therefore bad. The people are, accordingly, entitled to judgment of ouster against the defendant, Phillips. (2 R. S. 585, § 48.)
The principal question is between Hart and Ritterband, each of xvhom contends that he xvas duly chosen a trustee in the place of Phillips, at the election held on the 11th of August, 1844. The information alleges that Hart xvas chosen on that occasion, (2 R. S. 582, §§ 30, 31,) but that Ritterband claims to be entitled to the office, for which cause he is made a party defendant. (§ 45.) Ritterband, in his plea, denies that Hart xvas chosen, and alleges that he was himself elected, for which cause he admits that he claims to be such trustee.
In his plea Ritterband states that an election xvas duly held on -the 11th of August, for the choice of a trustee in the place of Phillips, and he admits that of the votes received by the inspectors, Hart had a greater number than himself, although he alleges that a large number of votes xvere offered to be given for him (R.) by qualified voters, and which, had they been received, would have given him a number exceeding those given and received for Hart; but he states that said votes, so offered for him, were rejected by the inspectors, xvho refused to receive or canvass them, for a cause xvhich is charged by him to be illegal.
There are various replications to this plea, some of which [396]*396are demurred to, and thus the sufficiency of the plea is directly drawn in question.
It is not suggested in the plea that any of the votes given for Hart were by illegal voters; and of the whole number of votes given and received by the inspectors, the plea admits that a greater number were cast for Hart than Bitterband. This concession seems to me fatal to the claim that Bitterband was chosen at that election. Legal votes may have been rejected so that no one was rightfully chosen, and a new election would be proper; but certainly no one could have been elected who received a minority only of the legal votes which were actually given and received at the election in question. (In the matter of the election of Directors of the Long Island Rail-Road Co., 19 Wend. 37; Angeli & Ames on Corp. 73.)
Judgment must therefore pass against Bitterband, as he shows no title to the office.
The only question which remains has reference to Hart, who is alleged, in the information, to have been duly chosen a.trustee at the election of the 11th of August. That he was chosen is not, in terms, denied by the defendant Phillips; but this decides nothing, for it is directly traversed by the defendant Bitterband. His plea, although it fails to show that he was duly elected, is quite sufficient as a denial that Hart was chosen. The election of Hart is therefore strictly in issue upon this plea, as it also is upon the fifth replication. Upon this issue the people hold the affirmative, and they are not entitled to judgment upon it unless the election of Hart is fully established.
Of the votes given and received by the inspectors of the election Hart had a greater number than Bitterband, and if none but illegal votes wore rejected Hart must have been duly chosen. But twenty-eight votes were offered to be given for Bitterband which were rejected by the inspectors : if these had been received and allowed in his favor he would have had a clear majority over Hart.
The issue has not been tried by a jury, but a stipulation in the nature of a special verdict has been entered into by the parties. By this certain matters are admitted; 1. “ All the facts [397]*397settled by the pleadings which terminate in demurrers.” 2. Sundry by-laws and other matters which are specified in the stipulation.
That clause of the stipulation by which all facts settled by the pleadings are admitted, is very liable to be misapprehended. The plea of Ritterband, so far as it assumes to show that he was chosen a trustee, is insufficient, and it can hardly be said, with propriety, that any facts are settled by such a plea or by replications thereto which are met by demurrers. At all events, it is not unlikely that the parties and their counsel may have understood this branch of the stipulation somewhat differently from the court. This is one reason for not proceeding in the present case to a judgment on the alleged right of the relator; nor ought that to be done until we are informed of the particular ground on which the twenty-eight votes were rejected. This does not clearly appear by the stipulation, as convenience, at least, requires that it should. In this proceeding the court are not bound to render judgment upon the right of the relator, as they are upon that of the defendants: it may be done or omitted “as justice shall require.” (2 R. S. 582, § 31.) And it seems to me it may with, great propriety be left for final adjudication on a direct proceeding against him if he shall think proper to enter into the office which will be vacated by the judgment against Phillips and Ritterband.
But I would not have it inferred from thus passing over this branch of the case, that I think Hart was rightfully chosen a trustee. As presented, this part of the case seems to me equivocal in matter of fact, but if I rightly apprehend the ground on which the votes were rejected, I think the inspectors plainly erred in refusing to receive these votes.
By the third section of the act of April 5,1S13, (3 R. S. 207,) any church, congregation or religious society, may proceed to elect trustees with a view to becoming incorporated, and at such election “ every male person of full age, who has statedly worshipped with such church, congregation or society, and has formerly been considered as belonging thereto, shall be entitled to vote. But at subsequent elections no person, although a mem[398]*398her, shall be permitted to vote “ until he shall have been a stated attendant on divine worship in the said church, congregation or society, at least one year before such election, and shall have contributed to the support of said church, congregation or society, according to the usages and customs thereof.” (I 7.)
Those sections prescribe the qualifications of electors, which in brief are: 1. Membership. No one can be an elector who does not belong to such church, congregation or society. 2. He must have been for a year at least, a stated attendant on divine worship in said church, congregation or society. 3. He must have contributed to the support of the same, according to the usages and customs thereof.
These qualifications can neither be abridged or extended' by any act of the trustees or of the corporators, but every person thus qualified has an incontestable right to vote at the election of trustees. The statute under which the incorporation was formed is its constitution, and every act in violation of this paramount law is necessarily invalid. This is a'well settled principle of the common law, and is of universal application to all corporations. (1 Bl. Com. 475 ; 2 Kent, 277, 293, 294; Angeli & Ames on Corp. 267, 273, 281, 6, 7, 8; The King v. Westwood, 7 Bing. R. 1; The Commonwealth v. Woelper, 3 Serg. & Rawle, 29; Taylor v. Griswold, 2 Green’s R. 222.) The same principle is recognized and affirmed by the revised statutes. (1 R. S. 599, §§ 1, 2, 3.) Every corporation has power to make by-laws, but they must be consistent with its charter or they will be invalid. This power to make by-laws is sometimes vested in the whole body of the corporators, and in other instances in a select body; the act under which this was formed expressly authorizes the trustees to make rules and orders for managing the temporal affairs of such church, congregation or society.” (3 R. iS. 208, § 4.)
I think it unnecessary here to inquire whether the body of this corporation can make by-laws upon any subject, or whether the power is vested exclusively in the trustees; for neither can [399]*399have any authority to make a by-law which contravenes the act under which the corporation came into existence.
Without, therefore, adverting in detail to the by-laws referred to in the stipulation, and upon which, it would seem, the twenty-eight votes were rejected, it may be sufficient for the present occasion to observe, that as far as these by-laws required qualifications for the exercise of the right of voting, not recognized in the statute, they rvere wholly unauthorized and of no force whatever. If the person offering to vote was a member, a stated attendant for the required period, and had contributed to the support of the society according to its usage and custom, he was a legal voter. He was not bound to comply with a by-law which declares that he must be specially admitted to títe privilege of being an elector, or which requires him to pay any specified sum for that privilege. No such restraint can be imposed upon the admission''■of members, otherwise qualified, to the right of voting. Indeed, the idea upon which these by-laws seem to have been framed and adopted, that persons may become members for the purpose of worship and contribution, and so far comply with what is usual and customary in the society, and still not be authorized to vote without special permission and the payment of some fixed or arbitrary sum, as a price for the privilege, is entirely fallacious. Membership, worship and contribution, carry with them, as an inseparable incident, the right to vote; for every such member is necessarily an elector. If the twenty-eight voters were excluded for not having complied with such by-laws, the inspectors erred, and Hart was not duly elected.
I have assumed upon this branch of the case that it is competent to attack and avoid the election of the relator, by showing, that although he received a majority of the votes given at the election, still a large number of legal votes were offered for Ritterband and improperly rejected, and which, had they been received, would have given him a clear majority over Hart. But it may admit of serious doubt whether an election can thus be invalidated. The principle has not been examined, and no opinion is intended to be expressed upon it. This, and other [400]*400questions which have been adverted to, may hereafter arise or. a direct proceeding against the relator, when it will become necessary to pass upon them.
The people are entitled to judgment against Phillips .and Ritterband, but no judgment is given as to the alleged right of Hart.
Judgment accordingly