Madison Avenue Baptist Church agt. The Baptist Church in Oliver street. and lost to self control, to the New York State Inebriate Asylum, upon ex parte affidavits, without any provision for an examination, on their own motion, as to whether they were or are such inebriates, before some court or officer and a jury, where they could be heard in opposition to the charge that they were or are such inebriates.

It follows that Adrian Janes is confined in such asylum without due process of law, and that he is entitled to an order for his discharge from that institution.

NEW YORK SUPERIOR COURT.

THE MADISON AVENUE BAPTIST CHURCH agt. THE BAPTIST CHURCH IN OLIVER STREET.

The common law right of alienation, as well as the power conferred by the Revised Statutes upon corporations generally, to convey their real property, is restrained in its application to religious corporations.

The statute provides that upon the application of a religious corporation, it shall be lawful for the court to make an order for the sale of any real estate of such corporation, and to direct the application of the moneys arising therefrom. Without such an order, any sale made by a religious society is void. When the purposes of a sale by such corporation are proper, and in no wise opposed by the policy or design of the statute, no court would be justified in withholding its consent, merely because the corporation had applied for permission to convey. All that the statute requires is, that the sanction of the court approving the sale shall be procured. But to enable the court to form a judgment, it must be put in possession of all the facts which furnish the reasons for the sale.

Whenever therefore a religious society has resolved to dispose of its property, and has agreed upon the terms and conditions of sale, and the application to bo made of the money arising therefrom, it is in a condition to seek the sanction of the court, and such sanction may properly be of the entire agreement. The trustees of a religious corporation are invested with the custody, care and supervisory control of all the temporalities appertaining to the church, and through them alone the corporation can act.

Where there is a direction and authority given to the trustees by the church and congregation duly called, to make application to the court for leave to convey, it makes the application as much the application of the corporation, as if each individual had signed the petition. And it seems that the trustees may make the application irrespective of any vote of the corporators.

Madison Avenue Baptist Church agt. The Baptist Church in Oliver street.

It is not actually necessary on a proper application for such sale and conveyance, nor is it required, that the court should direct in the order the application of the moneys arising from such sale. Nor that it should do more than sanction the arrangement by ordering the conveyance to be made.

A society becomes incorporated as a religious, not as a sectarian body. And the same principle which allows a majority of corporators to change their articles of faith, would authorise a majority of two societies, entertaining the same belief, to enter a valid contract to unite and form themselves into one church; such a union, formed under such a contract, is not liable to the objection that one of the corporations become extinct. Although in strictness it dissolves one corporation and is an abandonment of their distinctive separate organization, in reality it is a mere union with another congregation, holding the same tenets, conforming to the same faith, and submitting to the same governmental discipline.

General Term, February, 1866.

Before BARBOUR, MONELL and GARVIN, Justices.

THE action was to recover the possession of a plot of ground on the southeasterly corner of Madison avenue and Thirty-first street, in this city. Prior to the 21st of October, 1862, the plaintiffs, a religious corporation, were the owners of the plot in question, and had erected thereon a church edifice, which they occupied as a house of worship. The complaint alleged the ownership of the plaintiffs, and the entry of the defendants. The answer, after denying all the allegations in the complaint not afterwards admitted, for a further and separate defence, set forth cer tain facts, which will sufficiently appear in the offers of evidence made on the trial.

The action was tried by Mr. Justice McCUNN, without a jury. On the trial, the plaintiffs proved a deed to themselves of the lot in question, dated August 1st, 1859, from Catharine Vanderpool, and the possession of the defendants. The defendants then offered in evidence a petition, resolutions, consents and order thereon, annexed to and forming a part of their answer. The petition was addressed to "the supreme court," and was by "the trustees of the Madison Avenue Baptist Church." It stated, that the Madison Avenue Baptist Church was a religious incorporation, and the owner of the lot on the southeasterly corner of Madi

Madison Avenue Baptist Church agt. The Baptist Church in Oliver street.

son avenue and Thirty-first street, on which they had erected a church edifice and lecture room, at a cost, including the lot and an organ, of the sum of about one hundred and twenty-two thousand dollars. That their indebtedness therefor was about seventy-three thousand dollars, sixtyone thousand five hundred dollars of which was secured by mortgages upon the premises. That owing to causes set forth in the petition, they were unable to pay their liabilities, or meet the current expenses of the church. That the said Madison Avenue Baptist Church, and the Baptist church in Oliver street, also a religious incorporation, and located in Oliver street in this city, and which had contemplated disposing of its property and moving up town, had formed a plan and made arrangements for uniting said two churches into one, and had agreed upon the following terms for such union:

"First. The Madison Avenue Baptist Church is to convey and transfer all its real and personal property to the Oliver Street Baptist Church, and the members of the Madison Avenue Baptist Church are to become and be members of the Oliver Street Baptist Church; and thereupon the regular services of the united churches to be held in the house of worship owned by the Madison Avenue Baptist Church.

Second. The trustees of the Oliver Street Baptist Church are to resign, and an election for new trustees ordered by the church and congregation united. The resignation of the present trustees to take effect when others shall have been elected.

"Third. The Oliver Street Baptist Church are then to take the necessary steps to cause its corporate name to be changed to the Madison Avenue Baptist Church.

Fourth. The real and personal property now owned by the Madison Avenue Baptist Church, and that owned by the Oliver Street Baptist Church, upon such transfer

Madison Avenue Baptist Church agt. The Baptist Church in Oliver street.

and union as aforesaid, is to become liable for the indebtedness of both said churches.

"Fifth. As soon as practicable after such union shall have been perfected, and new trustees elected, a sale of the pews in the Madison Avenue Baptist Church, at their present assessed value, is to be ordered, upon the same terms and conditions as provided by the form of deed formerly adopted by the Madison Avenue Baptist Church; at which sale, the present owners of pews heretofore sold, amounting together to thirty-one thousand dollars, are to have the right to purchase a pew or pews of equal value to those heretofore purchased by them, without further payment than the amount of premiums which may be bid for choice, and are to receive a deed for the same. And the present members of the Oliver Street Baptist Church or congregation, also, are to have the right to purchase pews to the amount of thirty-one thousand dollars, without any payment, or merely a nominal one, except the amount of premium that may be bid for choice of pews."

The petition then stated that the plan and terms for forming a union of the two churches had been agreed upon by a joint committee appointed by said churches, respectively; that such committees had reported to their respective churches the plan, arrangement and terms for the union of the two churches, and that at a public meeting of the church and congregation of the Madison Avenue Baptist Church, duly called, the report of their committee of the plan, arrangement and terms for the union of the two churches, "was adopted and approved, and the trustees of the Madison Avenue Baptist Church authorized and directed to petition the court for an order authorizing them to convey the property of the Madison Avenue Baptist Church to said Oliver Street Baptist Church, in pursuance of the plan and arrangement for the union of the said two churches on the terms above stated." The petition further stated that, at a public meeting of the

Madison Avenue Baptist Church agt. The Baptist Church in Oliver street.

Oliver Street Baptist Church and congregation, the report of their committees of the plan, &c., of the union, was adopted and approved, and the trustees were authorized and directed to take the necessary legal steps to perfect the union of the two churches; and that, subsequently, the trustees of the Oliver Street Baptist Church had adopted a resolution pledging themselves to carry out and perfect the union of the two churches. The petition further stated that the Oliver Street Baptist Church owned property, over and above all their indebtedness, of the value of from fifty to sixty-five thousand dollars, which on the consummation of the union would become applica ble to the payment of the debts and liabilities of the Madison Avenue Baptist Church. That a portion of the pew-holders of said church had consented to the transfer of the property, and that the residue of said pew-holders had approved of, and were in favor of forming the union. The petition then prayed for an order authorizing and directing the petitioners "to convey" the said premises to the Oliver Street Baptist Church. Annexed to the petition was an authenticated copy of the proceedings of the meeting of the congregation of the Madison Avenue Baptist Church, which had approved of the plan for the union, and also the consent of the pew-owners and holders. Upon such petition, the court made an order authorizing and directing the trustees of the Madison Avenue Baptist Church, to "convey" by a proper deed of conveyance, the said premises to the Oliver Street Baptist Church. The order was afterwards amended by changing the words "the Oliver Street Baptist Church," to "the Baptist Church in Oliver street."

The plaintiff's objected to the papers offered on the several grounds:

1st. As immaterial. 2d. That it appeared on the face of the papers that the proceeding was void. 3d. That it did not appear that it was authorized by a majority of the