People ex rel. Waters agt. Commissioners of Emigration. MOTION by the relator for a mandamus against the commissioners of emigration. WILLIAM TRACY, for the relator. JOHN E. DEVELIN, for the commissioners. SUTHERLAND, Justice. Take the relator's own case, and in my opinion he is not entitled to a mandamus directing the payment of the amount of $432, as an allowance for rent which he has been obliged to pay for a dwelling outside of the quarantine inclosure, since the destruction of the quarantine buildings by fire in 1858. Concede that the relator is and has been, since the destruction of said buildings by fire, an employee of the marine hospital, within the meaning of section 7 of the act of April 13, 1853, yet the duty enjoined upon the commissioners by that section is to provide suitable accommodations for such employees, not to pay money. The relator could not by his own act, by going outside of the quarantine inclosure and renting another dwelling, create a statutory duty to pay money, certainly not a certain sum of money. The relator could not, by his own act, create even a contract on the part of the commissioners to pay him an equivalent for the use of the building destroyed by fire, much less a statutory duty. A mandamus will be granted to compel the performance of an official duty enjoined by statute, but the act or duty so to be enforced by mandamus, must be the act or duty enjoined by the statute. But the relator asks for a mandamus not only directing the payment of the $432, but also commanding the commissioners immediately to provide suitable accommodations for him within the quarantine inclosure or elsewhere, so that he may have a residence. If the relator is an employee of the marine hospital, and the statutory duty, notwithstanding the destruction of the Robbins agt. Watson. quarantine buildings by fire, is in full force, it is not the statutory duty of the commissioners to provide suitable accommodations elsewhere, or outside of quarantine inclosure; and certainly, as it appears from the papers submitted on this application, and from the statutes referred to by the counsel on the argument, that the quarantine buildings, destroyed by fire in 1858, were transferred to the commissioners, and held by them in trust for the state, and were not erected by the commissioners, I ought not to hold it to be the duty of the commissioners to erect new buildings, within the quarantine inclosure or burnt district, in the absence of any new statutory direction. I will add, that I think there is too much doubt whether the rélator is or was an employee of the marine hospital within the meaning of the 7th section of the act of 1853, to authorize the issuing of the mandamus. The relator's motion must be denied, with $10 costs. SUPREME COURT. ROBBINS and ROYCE agt. WATSON. Where the plaintiff admits the defendant's counter-claim, and takes judgment for the balance, it is not irregular to enter up judgment without serving a notice of assessment by the clerk. New York Special Term, October, 1861. INGRAHAM, Justice. The defendant moves to set aside the judgment in this case for irregularity. The complaint was for a bill of goods sold to the defendant. The answer admitted the sale and delivery, but set up a counter-claim. This was admitted by the plaintiff, and judgment entered for the balance, and interest. The alleged irregularity was, 1. In entering up judgment without serving a notice of assessment by the clerk: People ex rel. Gearn agt. Farrington. 2. In adjusting the costs without notice and 3. For inserting improper charges in the bill of costs. The only objection needing examination is the first. The 246th section of the Code relates to cases in which the defendant does not answer, and therefore does not apply to this case. The plaintiff having admitted the defendant's set-off, had a right to take judgment for the residue. As to that portion of the plaintiff's claim, the answer had the same effect as the cognovit under the old system, and the plaintiff had a right to enter judgment therefor on filing the reply. There was not, at any rate, any necessity of an application to the clerk, as he had no authority in the premises. If any was necessary, it was to the court, and this is not complained of in the notice. The judgment in this respect was, however, regular. The other objection does not affect the regularity of the judgment. The plaintiff gave notice of adjustment, which was prevented by the defendant's act, in staying proceedings. If the defendant now wishes the costs re-adjusted, he must request the plaintiff's attorney, in writing, to have the same done. Motion denied with $10 costs. SUPREME COURT. THE PEOPLE ex rel. GEORGE GEARN and others agt. DANIEL FARRINGTON and others. According to the act of May 25, 1836, the "Trustees of the Theological Seminary of the Associate Reformed Church of New York," were to be chosen by the Associate Reformed Synod of New York, at their annual meeting. In this case there was shown to be in existence two religious assemblies, each claiming to be the Associate Reformed Synod of New York, and as such entitled to choose trustees of this seminary-a formal election of trustees had been made by each of these bodies, People ex rel. Gearn agt. Farrington. Held, that the assembly from which the relators derived their title had the better claim to be regarded as the true and properly constituted Associate Reformed Synod of New York, and were entitled to the office. That the action of the persons who constituted the body from which the defendants derived their title was premature and irregular; that it was a secession from the true synod, and could not be relied upon to confer any legal rights. (Disclosing an interesting history of this church.) Poughkeepsie Special Term, July 3, 1861. Trustees quo warranto" to try the title of the defendants to the office of of the Theological Seminary of the Associate Reformed Church," and to have the relators declared entitled to such office. "The trustees of the Theological Seminary of the Associate Reformed Chuch" are a body corporate, created by an act of the legislature, (Laws of 1836, p. 744.) The power to elect trustees of said corporation is vested by the said act, in the "Associate Reformed Synod of New York, at their annual meeting," (sec. 3.) The Associate Reformed Synod of New York is a "Particular Synod," and is composed of several "Presbyteries" met together, (page 506, Book of Discipline.) The "Presbytery" consists of all the ministers within a certain district, each accompanied by a ruling elder commissioned from the session, (p. 490.) The officers of a synod are a moderator and a clerk. The clerk may be a member of the synod or not, as may be deemed expedient, and holds his office during the pleasure of the synod. Every stated meeting of a synod is to be opened by the moderator of the last preceding meeting, and in case of his absence, by the oldest minister present, (pp. 508, 509.) A regular meeting of the Associate Reformed Synod of New York was held at the Jane street church, New York, Oct. 21, 1857. At this meeting, Rev. George C. Arnold was chosen moderator, and served as such. Rev. Mr. Scouller was and long had been clerk. These persons held their respective offices when the synod adjourned, having People ex rel. Gearn agt. Farrington. resolved to hold their next regular annual meeting at York, on the second Monday of October, 1858, at ten o'clock A. M. Up to this point there is no question raised as to the regularity of the proceedings of the synod. On the morning of the 2d Monday of October, 1858, at the place in York, selected for the meeting of the synod, the occurrences took place, which resulted in the existence of two bodies, each claiming to be the " Associate Reformed Synod of New York." Under one of such bodies the rela tors claim their right to the office of trustees, and the defendants under the other. There is no question made as to the election of either set of trustees by the body under whom they claim, nor that both of said bodies have been kept up by regular adjournments down to the present time. The members of the Associate Reformed Synod of New York, on the 2d Monday of October, 1858, were forty-five ministers, and the ruling elders accompanying them. Thirty of such ministers (with their elders) were actually present at the time and place of meeting at York. Mr. Arnold, the moderator, and Mr. Scouller, the clerk, of the last meeting of the synod, were present, ready to perform their respective duties. Rev. Mr. Farrington, at five minutes before ten o'clock, according to plaintiffs' witnesses, and at ten o'clock, according to defendants' witnesses, made a motion that "in the absence of the moderator, who had connected himself with another religious body," Rev. Dr. MeCarrell be moderator pro tem. No vote was taken on the motion, but Dr. Mc Carrell immediately took the chair. Rev. Mr. McNulty then made a motion "that the clerk of the synod being absent, and having connected himself with another body, Rev. R. Howard Wallace be clerk pro tem." This motion was declared carried. Dr. McCarrell having made a short prayer, Mr. Farrington then moved an adjournment to another place, which was put and declared carried. Sixteen |