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Voorbees and Wife agt. Presbyterian Church of Amsterdam and others.

into effect so far as it can be collected from the whole instrument and is consistent with the rules of law (Cruise Dig. tit. Deed, ch. 23, § 17; 16 John. 178; 22 Wen. 489; 1 R. S. 748, § 2, 1st ed.) In this case the intention of the parties can not in

any manner be carried into effect consistent with the rules of law (16 John. 178; 22 Wen. 489; 2 R. S. 33, § 2, 3d ed). The trustees of the religious corporation had no power to alienate or dispose of the real property of the church, except such as was derived from the act to provide for the incorporation of religious societies; and that act only authorized them to demise and lease the real estate of the church or to'rent the pews. I concede that in certain cases the execution of a power may be good in part and bad in part, and that the excess only will be void. But this is only where there is a complete execution of the power and only a distinct and independent limitation unauthorizedly added, and the boundaries between the sound part and the excess are clearly distinguishable, as in the case of a power to lease for 21 years and the lease is made for 26 years (4 Kent Com. 346). In such a case the lease is bad at law, but good in equity for 21 years, because it is a complete execution of the power, and it appears how much it has been exceeded (4 Kent Com. 107; 1 Bar. 120; 1 Swans. 337, 357; 10 East, 158). So where the good and bad part of a trust can be separated, and the one can be sustained without giving effect to the other, the good part will be held valid, while the bad part is held void. As where there is an assignment in trust to sell and mortgage real estate for the benefit of the creditors; the assignment may be held valid as to the trust to sell, although the trust to mortgage is void (Darling vs. Rogers, 22 Wen. 483. In Error, 5 Paige, 320, Hawley vs. James). In this case the good and bad parts of the deed can not be separated, as can be done in the case of a power to lease for 21 years, and a lease is executed for 26 years. It does not appear here how much the power of the trustees has been exceeded, so that the excess may be declared void.

The conveyance of the pew in fee to S. Voorhees can not enure as a lease or be construed to operate as a lease. The court

Voorhees and Wife agt. Presbyterian Church of Amsterdam and others.

can not make an entire new contract for the parties. They have no power to declare how long the lease shall run or what rent shall be reserved in it. Here the intent of the parties to convey absolutely in fee can not be carried into effect consistent with the rules of law.

I therefore conclude that the conveyance to the plaintiff S. Voorhees, of pew No. 45, not being authorized by the act to provide for the incorporation of religious societies, was void and conveyed no title to him, and that his assignment consequently passed no title to his wife.

But if the trustees had executed a valid lease of pew No. 45 to the plaintiffs, the plaintiffs could not have maintained an action against the trustees to recover possession of the pew or the place formerly occupied by it. The right acquired by the plaintiffs would only have been a right to the use of the pew during divine service,“ in subordination to the more general right of the trustees in the soil and freehold.” They took their title subject to the right and power of the trustees to alter and repair the church (3 Hill, 26; 3 Paige, 302). The trustees in repairing and altering the church have exercised a lawful power conferred upon them by statute. The alteration of the church by the trustees, as appears from the evidence, was a judicious and proper improvement, beneficial to the members of the congregation, and was made in accordance with a vote of the congregation. The interest of a pewholder in his pew is a qualified interest. It is limited to its use during divine worship. It is limited too as to time. If the house is burnt or destroyed by time, the right is gone (5 Cow. 496). The pewholder has no title to the soil on which the edifice stands, nor to the edifice itself. The building and soil are the property of the corporation; and the seizin and possession of the same are in the trustees. Whenever it is necessary or proper, the trustees may

take down the old edifice and rebuild on the same spot, or elsewhere, and may alter the form and shape of the building for the purpose of making it more convenient and adapting it to the increased wants of the society. And in doing this they can, for useful purposes and to carry out the contem

Dresser agt. Brooks.

plated improvement, take down and remove the pews of the pewholders. The property of the pewholders in their pews is necessarily subject to the right of the trustees to alter and improve the internal arrangement of the church as the good of the society may require. And if in doing this, the pews are necessarily destroyed, the pewholders can not maintain either trespass or ejectment against the trustees. The pewholder has a remedy where his pew is destroyed for convenience only; or where the trustees have been guilty of a wanton and malicious abuse of their

power in destroying his pew. In such cases his remedy and his only remedy is an action to recover damages by way of an indemnity for the loss of his pew. If the church edifice is so far decayed as to be unfit for use as a house of public worship, and it is for that reason taken down, the pewholder's right to his gone and he is not entitled to any indemnity for its loss (9 John. 147, 156; 2 Edw. Ch. R. 608; 17 Mass. 434; 1 Pick. 102; 3 Pick. 344; 7 Pick. 137; 3d ed. Ch. R. 138, 9; Bronson vs. St. Peters Church, vol. 7, No. 12, N. Y. Legal Observer, per MAYNARD, J). The defendants are at liberty to amend their answer so as to conform it to the proof, if they think proper to do so.

Judgment must be entered for the defendants.

pew is

COURT OF APPEALS.

DRESSER Appellant agt. Brooks, Respondent. Service of notice of justification of sureties, in an undertaking, when made by

mail, should be double time, ten days. If such service would carry the time of justification beyond the ten days re

quired by $ 341 of the Code, it should either be made personally, or a judge's

order obtained extending the time. The non payment of costs of the dismissal of an appeal, is ground for staying proceedings on a second appeal in the same cause, until such costs are paid.

On the 7th of June the respondent excepted to the sufficiency of the sureties in the undertaking, and served notice of the exception by mail. The notice was received by the appellant on the 10th, who on the same day gave notice by mail that the sureties would justify on the 17th, and the sureties did justify on

Dresser agt. Brooks.

that day. The respondent did not attend the justification, because the notice of justifying, being served by mail, should have been a notice of ten days (Code, $ 341, 412). A former appeal in the cause had been dismissed with costs (Dresser v. Brooks, 2 Comst. 559); and the costs had not been paid.

H. Denio, for the respondent, moved to dismiss the appeal, because there had been no regular justification of the sureties. If the appeal should not be dismissed, he asked a stay of proceedings on the appeal until the costs of the former appeal shall be paid. He cited 1 John. Cas. 247; 3 Cow. 380; 4 Wend. 216.

H. Dresser, Contra, said the sureties were bound to justify within ten days after the exception (Code, § 341); and in his notice of justifying he had given all the time (seven days) that remained to him after notice of the exception was received.

BRONSON, Ch. J.-As the notice of justifying was served by mail, it should have been double time or ten days. If the appellant had not sufficient time to give regular notice by mail, he should either have caused personal service to be made, or should have obtained a judge's order enlarging the time. As the notice was irregular, the justification amounts to nothing. But there is ground for granting relief, and the appeal will not be dismissed if the sureties justify within thirty days, and the appellant pays the costs of the motion.

If the sureties justify, all further proceedings on the appeal should be stayed until the costs of the former appeal are paid. Two successive appeals in the same case, like two actions for the same cause, tend to vexation; and we think this branch of the motion should be granted.

Ordered that the appeal be dismissed with costs, unless the sureties in the undertaking justify, upon regular notice, within thirty days, and the appellant pays ten dollars costs of the motion. If the sureties justify, then all further proceedings on the appeal are stayed until the costs of the former appeal are paid; and if they are not paid within sixty days from this time, the respondent may enter an order dismissing the present appeal, for want of prosecution, with costs.

Decisions in Court of Appeals.

COURT OF APPEALS.

Decisions Sept. Term, 1848, at the Capitol in the City of Albany.

(Continued from page 40, and concldued. 1

John CHRETIEN, plaintiff in error, vs. John Doney and others, defendants in error. Judgment of restitution reversed, and as to all the rest, judgment affirmed without costs in this Court. R. GERMAIN and N. BENNETT for plaintiff in error; J. B. LATHROP and H. SEYMOUR JR. for defendants in error.

This case involved the construction of a clause in a lease for a term of years. And this principle was settled in the decision to wit: “Where the landlord obtains possession of the demised premises by summary proceedings which are reversed in the Supreme Court upon certiorari, that court should not award restitution to the tenant, if the term has expired before the judgment of reversal is rendered.” Reported, 1 Comstock, 419

EBENEZER WISWALL, plaintiff in error, agt. LEVINUS A. LANSING, defendant in error. Judgment affirmed. D. BUEL Jr. for plaintiff in error; JOHN K. PORTER for defendant in error.

This was an action for obstructing a way. It was held, among other questions, that a devise of land to which a right of way is appurtenant, will pass the easement to the devisee, although it be not particularly specified in the will

Also that twenty years uninterrupted and unqualified enjoyment of a way across the lands of another, is decisive evidence of a grant of the right of way.

Other questions in relation to the pleadings and exceptions in the case were decided. Reported, 5 Denio, 213.

PHILIP SLADE, appellant, agt. Perry WARREN JR. et al., respondents. Decree affirmed. SAMUEL STEVENS for appellant; D. BUEL JR. for respondents.

This was a case where a mortgagor conveyed his equity of redemption to trustees for the benefit of his creditors, who sold the premises at auction. A portion was sold to V. free from incum

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