Matter of Opening Lexington Avenue. apply to roads and highways as known or designated under general highway system of the state. In other words, it relates, I think, to country roads and highways, and not to the streets and avenues of cities. The case of The People ex rel. Commissioners agt. Banks (67 N. Y., 568, 569), while not precisely in point, seems to me to present a somewhat analogous question to that which is involved in this case, and I do not think that the single expression which is contained in judge ALLEN's opinion, at page 575, in reference to streets of a city, should be held by me to control what appears to be the general drift and tenor of the decision. It will, I think, be safe to regard the remarks of the learned judge, on page 574, as conveying the true import and meaning of the construction given by the court of appeals to the section of the constitution under consideration. The learned judge there says: "This provision was designed to prevent any interference with the general highway system of the state, or with the keeping of the ordinary highways and public roads in repair under that system, and the supervision of the officers designated, and in the use of the means and the labor provided by law. The act under review does not, in any of its provisions, provide for the altering, opening or working of a highway, in the sense which those terms were used in the statutes of the state regulating highways and public roads, or the constitutional provisions now invoked." In any event, as it has been frequently held that the court at special term should not declare an act of the legislature unconstitutional, except in an extremely clear case, and as I do not regard this as such a case, I deem it proper to overrule the objection and grant the order which is prayed for in the petition. Isham agt. Trustees of the First Presbyterian Church of Dunkirk. SUPREME COURT. EDWIN ISHAM and others agt. THE TRUSTEES OF THE FIRST PRESBYTERIAN CHURCH OF DUNKIRK and others. Religious societies - Trustees of, no power to divert church property from the uses and purposes of the denomination of Christians that obtained and acquired it. Under the provisions of the act of 1813, the members of a congregation of a religious corporation were at liberty to divert the church property from the dissemination of the views of the persons acquiring it to that of any other view, whether religious or secular, which might be sanctioned or adopted by a voting majority of the congregation. But by the acts of 1875 and 1876 (Laws of 1875, chapter 79; Laws of 1876, chapter 176), the congregation as well as the trustees of a religious society are deprived of the power afterwards to divert the church property from the promotion and dissemination of the religious views of the persons obtaining and acquiring it, to the promulgation and maintenance of any different system of religious belief. Instead of holding the property subject simply to the disposition of the voting majority of the congregation, the trustees were henceforward required to hold and devote it to the uses and purposes of the denomination of Christians in which the society should be included, that obtained and acquired it. Under these acts they became in fact as well as in name trustees of the religious corporation by whose members they should be elected, and bound to hold the church property according to the discipline, rules and usages of the denomination, including the corporation itself. When a clergyman, officiating as such in this society, adopted and advocated religious views at variance with the Presbyterian articles of belief, he, by force of these provisions of the statutes, forfeited his right to use this church edifice for their dissemination. The trustees, by the plain terms of the acts, were deprived of the authority to allow the church property to be afterwards so used by him, for it was made their duty to hold it subject to the rules and usages of the denomination of which this society was a member, and that precluded its devotion to the inculcation of any system of religious belief adverse to what was adopted and maintained by the Presbyterian denomination. The acts of 1875, 1876, in terms, secure the appropriation of such property for the denominational purposes for which it has been acquired, and they who, dissenting from that use of the property, voluntarily leave the society and enter into another more consonant to their own VOL. LXIII 59 Isham agt. Trustees of the First Presbyterian Church of Dunkirk. religious views, must consequently be regarded as abandoning and relinquishing the rights and privileges they would be entitled to enjoy if such a change had not taken place. The persons still adhering to the religious faith and articles of belief of their denomination, and who have.heretofore been members of the congregation, are entitled to be continued in the use and enjoyment of this church property. Courts of equity have jurisdiction over religious corporations so far as may be necessary to enforce the provisions of these statutes. Special Term, August, 1882. MOTION for an injunction restraining the trustees from closing the church edifice, and thereby preventing its use by the church session and the congregation. Hon. Sherman S. Rogers and O. W. Johnson, for plaintiffs. W. W. Holdt and C. D. Murray, for defendants. DANIELS, J.— The First Presbyterian church of the village of Dunkirk was incorporated under the laws providing for the incorporation of religious societies, in the year 1873. The corporation was formed by a Presbyterian society previously existing, and its object was to own, preserve and perpetuate the use of the property by the society as a Presbyterian church. Its use continued in that manner until about the year 1880; then differences arose as to one or more of the articles of faith of the congregation, that resulted in a division of the society and the removal of the person at the time employed and officiating as its clergyman. The removal was made by the presbytery in which the society was included, and the deposed clergyman, together with his adherents, have since attended and conducted public worship, in accordance with their views, in another part of the city of Dunkirk. The members of the church and congregation who did not agree with the views of the deposed clergyman have, since this division in the society, been deprived by the board of trustees of the use of the church edifice, and the object of the present Isham agt. Trustees of the First Presbyterian Church of Dunkirk. motion is to obtain an injunction restraining the trustees from closing the church edifice against these persons. As the act of 1813 has been construed, the members of the congregation of a religious corporation were under its provisions left at liberty to divert the church property from the dissemination of the views of the persons acquiring it to that of any other view, whether religious or secular, which might be sanctioned and adopted by a voting majority of the con gregation (Robertson agt. Bullions, 1 Kernan, 243; Petty agt. Tooker, 21 N. Y., 267; Russell agt. Reformed Church, 44 Barb., 283). This was an extreme construction of the terms in which the carefully guarded act of 1813 was enacted, and by chapter 79 of the Laws of 1875 the legislature undertook its correction, and for that purpose provided and declared that the trustees of a religious society, incorporated under the act of 1813, should administer its temporalities and hold its property and revenues for the benefit of the corporation, according to the discipline, rules and usages of the denomination to which the corporation belongs (Laws 1875, p. 79, sec. 4). This enactment was preserved and in terms extended by chapter 176 of the Laws of 1876. The plain purpose of these acts was to abrogate the rule which had grown out of the preceding construction given to the act of 1813, and to deprive the congregation as well as the trustees of the society of the power afterwards to divert the church property from the promotion and dissemination of the religious views of the persons obtaining and acquiring it to the promulgation and maintenance of any different systems of religious belief. Instead of holding the property subject, simply, to the disposition of the voting majority of the congregation, the trustees were henceforward required to hold and devote it to the uses and purposes of the denomination of Christians in which the society should be included that obtained and acquired it. Under these acts they became in fact as well as in name trustees of the religious corporation by whose members they should Isham agt. Trustees of the First Presbyterian Church of Dunkirk. be elected, and bound to hold the church property according to the discipline, rules and usages of the denomination, including the corporation itself. These acts were substantially so construed by Mr. justice BARKER for the purpose of sustaining an injunction preventing the deposed clergyman from occupying this church edifice, and they are acquiesced in and adopted as a proper exposition of these enactments. These statutes do not appear to be liable to the objection that they may be attended with the effect of depriving the corporate owners of the property without due process of law. That was no part of the scheme or purpose of these laws, and their observance cannot be attended with such a result. Their objection and intention was, on the contrary, to prevent the owners from being so deprived of the property which they have acquired, and to devote and confine it to the promotion of the views and purposes leading to its acquisition. It was as manifestly unjust to allow persons becoming members of a religious society, formed for the purpose of inculcating particular views, by their subsequent votes, to appropriate the property they might have done nothing to acquire to the promotion of views of an entirely different character from those entertained by the persons through whose contributions the property may have been obtained. This was a practical abuse which the Laws of 1875-6 were designed in the future to prevent, and they are required to be so construed as to carry that policy into effect. When the clergyman, officiating as such in this society, adopted and advocated religious views at variance with the Presbyterian articles of belief, he by force of these provisions of the statutes forfeited his right to use this church. edifice for their dissemination. The trustees by their plain terms of the acts were deprived of the authority to allow the church property to be afterwards so used by him, for it was made their duty to hold it subject to the rules and usages of the denomination of which this society was a member, and that precluded its devotion to the inculcation of any system |