Majority
p. 219Trustees of the first Presbyterian Congregation in Hebron, &c. against Quackenbush. NEWYORK, May, 1813.
Headnote
The pews of a by auction, free ^ur^ose°o£° to'^'clmpMe^ purchased a pew, of JíSh™! a°“ without any* agreement‘as rent! TiT an action of <zsby the true. tees against A,, to recover his proportion of the assessments laid by the corporation, on the pews, in order to defray the salary of the minister; it was held that A. was not liable on any implied assumpsits and the trustees having no power to make assessments in personam, A, was not liable personally, unless some contract or promise to pay was shown.
THIS was an action of assumpsit. The counts were special on the statute. The meeting-house of the congregation was built by subscription; and for the purpose of raising money for its completion, the pews were sold at public auction, by a vote of the congregation, free of rent. The sums bid for the pews were paid by the purchasers to the trustees, and applied towards finishing the building. One of the pews was purchased by the defendant, for 35 dollars, e which sum he paid, and his name was entered in the books of the corporation. The defendant took possession of the pew, under the sale, and continued in possession for more than ten years, without any rent being assessed on the pew. At the time of the sale, there was no agreement to give leases or other conveyances for the pews under the seal of the corporation, and none were made, The pews sold for a high price, in consequence of their being tree írom rent. I he corporation have no funds except a glebe,
p. 220
About six months after the sale of the pews, there was a vote o~ the congregation, that if any- assessment was made on the pews.~ and it remained unpaid for one month, the pews should be sold for the benefit of the congregation. No promise of the defendant to pay rent was shown; but he still continued to be a member of the congregation, and occupied the pew so purchased by him; and the action was brought to recover his proportion of the salary of the minister, assessed by the plaintifii3 on all the pews.
The trustees are vested by law with the possession of the church, and with power “ to regulate and order the renting the pews therein.” (Sess. 24. c. 79. s. 4.) Whether the assessment of the pew-rent was a valid assessment we need not now inquire, for the defendant is not chargeable in this case, upon the implied assumpsit to pay, in consequence of the occupation of the pew. The trustees have no power to make and levy personal assessments, and the owner of the pew is not liable in personam, unless there be some special ground from which to infer a contract and promise to pay. We think the facts in this case are not sufficient to furnish such an inference, and, consequently, the defendant is entitled to judgment.
Judgment for the defendant.