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Stoker v. Scwab

16 N.Y. St. Rep. 885 Court N.Y. Super. Ct. Decision date 1888-06-20 English

Delivered by Freedman, J.

Contents

Majority

p. 885
Richard Stoker v. Samuel Scwab.
(New York Superior Court, General Term,
Filed June 20, 1888.)

Headnote

1. Church corporation—How formed—Proof of certificate may be MADE BY PAROL—2 REV. STAT., 7th ED., 1654.
The law (2 Rev. Stat., 7th ed., p. 1654) prescribes that the two members of the church who preside at the first election of trustees shall, as returning officers, certify, under their hands and seals, certain matters, which certificate shall be recorded, and thereupon such trustees, and their successors, shall be a body corporate. The original certificate of the two members of a certain church, who presided at the first election of trustees, and as returning officers made said certificate, was lost, and the record of it in the office of the clerk of the proper county contained no mark, or marks, indicating that there was a seal, or seals, affixed as required by law. Held, that the fact that the certificate, as recorded, does not appear to have had seals, was not necessarily fatal. That parol evidence may be given that the certificate was, in fact, executed under seal. Per Freedman, J.
2. Same—Power to convey real estate.
Held, that said church was a corporation defacto, capable of taking real estate and conveying with the permission of the supreme court. Per Sedgwick, Oh. J.
Submission of a controversy upon an agreed state of facts.
Ferdinand Kurzman, for plaintiff; Maurice Rapp, for defendant.

This is a submission of a controversy upon an agreed state of facts, and the sole question is whether the St. Paul’s African Methodist Episcopal Church in Morrisania, as a corporation, can pass a good and sufficient title to real estate in the absence of evidence that there were seals affixed to the original certificate, the original certificate having been lost, and the record failing to show that there was a seal, or seals, affixed, and there being no evidence whatever that a seal, or seals, had ever been affixed. The certificate in question appeared to have been signed by two of the members of the church. It was also acknowledged by them before a notary public, and then recorded in the office of the clerk of the county of Westchester. The record contains no mark, or marks, indicating that there was a seal, or seals, affixed. The statute (2 Rev. Stat., 6th ed., p. 413-414 ; 7th ed., p. 1654) prescribed that the two members of the church who preside at the first election of trustees shall, as returning officers, certify, under their hands and seals, certain matters, which certificate shall be recorded, and thereupon such trustees, and their successors, shall be a body corporate. Until that is done there is no corporation.

The fact that the certificate as recorded does not appear to have had seals, is not necessarily fatal. Parol evidence

p. 886
may be given that the certificate was, in fact, executed under seal, and in the case of The Trustees of the St. Jacob’s Lutheran Church of the Town of Eden v. Bly ( 73 N. Y. 323 ), upon which the plaintiff here relies, such parol evidence was given.

There being no such evidence in the case at bar, the defendant is entitled to judgment, with costs, as prayed for in the submission.

The question is whether the plaintiff had a title which he could convey. The objection is, that his right comes through a deed by a grantor called St. Paul’s African Methodist Episcopal Church, and that such grantor was not a corporation with legal capacity to take and convey real estate. There was a charter providing for the formation of such religious corporation. A certificate was filed, in pursuance of statute, which would have legally created the corporation, if it had in all respects complied with the statute. The corporation acted as a corporation under the statute and the certificate. It was, therefore, a corporation de facto, at the least, capable of taking real estate and conveying with the permission of the supreme court. In this case the permission was obtained. The only defect cited is, that the certificate was not sealed, as it is said is required by the statute. This does not prevent action and continuance of a corporation defacto.

No one has an interest in the title excepting by supposition the grantor of the corporation. Having received the-consideration of the deed from the grantee as a corporation, he would be estopped from asserting that it was not a corporation.

The plaintiff should have judgment, with costs.

Truax, J., concurs._

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