Opinion of the Court, per MILLER, J. an issue in the action, and that the action should have been brought expressly for a reformation of the written contract which is the subject of the litigation. Such a remedy would be entirely appropriate where the action brought depended and was founded upon the instrument sought to be enforced, and which it was claimed was executed under a mistake as to the facts, as is held in the cases cited by the defendant's counsel. But this mode of relief is not essential or proper when the action is upon a contract or is in the nature of the foreclosure of a mortgage, valid on its face, and the plaintiff is seeking the benefit of the same as it stands by his action, and the defendant sets up an instrument showing a payment of the bond and mortgage by way of defense. Under such a state of facts the plaintiff is not bound to anticipate that any such defense exists, or if it did exist that it may be interposed by answer. As appears in this case, he may not have understood that the instrument he had signed presented any obstacle to a recovery, and was therefore not required to set it forth in his complaint and ask relief against it. And when it was made a defense he had a right to meet it on the trial by proof of any facts which showed that by reason of a mistake and misapprehension it failed to express the real intention of the parties and was therefore invalid. The answer of the defendant after setting up the instrument referred to as a defense demanded judgment that the defendant might be declared to be the true and lawful owner of the bonds and mortgages, and that the plaintiff execute and deliver an assignment of, etc., and also deliver the bonds and mortgages to the defendant. It was an affirmative defense to which no reply under the rules and practice as to pleadings was required, and the plaintiff was authorized to meet it by evidence showing that the bonds and mortgages had not been paid; that the alleged defense had no foundation whatever and was without merit. The evidence on this branch of the case was therefore entirely relevant, and bore directly upon the issue made by the defendant to the effect that the instrument showed a payment of the bonds and Statement of case. mortgages and the defendant was entitled to a transfer of the same. The authorities cited by the defendant's counsel do not impair the relevancy of the testimony in reference to the question considered and have no application to such a case. The other questions presented have been carefully considered and cannot affect the decision of the case. The judgment should be affirmed, with costs. All concur, ALLEN and RAPALLO, JJ., in result. THE TRUSTEES OF THE ST. JACOB'S LUTHERAN CHURCH OF THE TOWN OF EDEN, Respondents, v. GEORGE BLY et al., Appellants. The fact that the certificate of the organization of a religious society required by the act providing for the incorporation of such societies (chap. 60, Laws of 1813), as recorded, does not appear to have had seals, is not necessarily fatal to its validity. The holding of the meeting, the election of trustees, and the execution of the certificate in accordance with the statute are the substantial requirements to create the corporation. An error in recording the certificate or the accidental loss of one or more of the seals after they were legally and properly affixed, will not invalidate the organization. Certain premises were deeded to the trustees of an unincorporated religious society and their successors in office for church purposes, and a church edifice was erected thereon. Dissensions having arisen among the members, the minority ceased to attend religious services at the church, but held such services at the house of one of their number. There was no withdrawal of these persons from the church or congregation, nor were they removed therefrom. The minority gave the requisite notices for a meeting at the house where they were holding services to organize a corporation. The notices were read in the church as well as at said house. A meeting was held and the necessary steps taken prescribed by the statute to incorporate the society. In an action of ejectment to recover possession of the church property, held, that this was the case of a society holding services in two places; that the place named for the meeting being one of these places was within the provision of the statute requiring such meeting to be called at "the place where they statedly attend for divine worship (§ 3); and that the corporation became, by force of said Statement of case. statute (§ 4), vested with all the temporalities belonging to the society, including the premises in question. The majority of the congregation subsequently called a meeting and attempted to organize a corporation. Held, that the statute only contemplated one corporation for the same society; at least that the first became vested with title to the property; also, that although, under our laws, the temporalities of a church are to be controlled by a majority of the congregation, this can only be done through and by the election of trustees favorable to their views. (Argued April 9, 1878; decided April 16, 1878.) APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, in favor of plaintiff, entered upon an order overruling exceptions and directing judgment on a verdict. This was an action of ejectment to recover possession of certain premises upon which was a church edifice, parsonage and school-house, in the town of Eden, Erie county. The plaintiffs claim to be the trustees of the religious society known as St. Jacob's Lutheran Church, of the town of Eden, and as such entitled to the possession and use of the church edifice, parsonage and school-house belonging thereto. A deed of the land on which the church, etc., were erected was given April 1, 1852, to John Heilbron, Charles F. Schroeder and George Eckhard. The deed, after the names of the grantees, continued as follows: "As trustees of the Lutheran St. Jacob's church, and their successors in office, of the town of Eden, county of Erie, and State of New York, belonging to the synod of the Lutheran church, emigrated from Prussia, and organized June 25, 1845, by Rev. J. A. A. Grabau, president and senior of the ministry and pastor of the Lutheran church in the city of Buffalo, N. Y. From this synod the Lutheran church at Eden shall receive her ministers and schoolmasters, and not from any other, and every one who will be an excluded member from this congregation or synod shall not have any rights or interest in the personal property or real estate of the said Jacob's church and congregation of Eden. The confession of this church and synod is the unaltered Augsburg confession of 1530, and their ortho Statement of case. dox explication in Dr. Luther's large and small catechism, the Apologia of the Augsburg confession, the Schmalkaldie articles and the former Concordia." The members of the society represented, erected the church, school-house and parsonage upon the premises, and worshipped together in said church, without being incorporated. Prior to 1867, a dissention arose in the church, three or four of the members constituting one party, and some fourteen or fifteen members constituting the other party. The evidence tended to show that both parties occupied the church for a time for public worship according to their respective creeds, the forms of worship being the same to both. The party smallest in numbers was known as the "Ritter party," and the larger one as the "Bly party.” For some time prior to July, 1867, the Ritter party had been holding services at the house of Mr. Ritter. In July, 1867, notice was given on two Sundays in the church, by the Ritter party, of a meeting to elect trustees and organize a corporation under the statutes regulating the incorporation of religious societies, the meeting to be held at the house of Mr. Ritter. On the day and at the place designated, some of the male members of the church attended and elected three trustees, designated the name of the corporation, and determined the number of the trustees which should manage the affairs of the corporation. A certificate was prepared of the proceedings, which was signed and sealed by the officers who presided at said meeting. The certificate is dated the 3d day of July, 1867, and was filed and recorded in the Erie county clerk's office on the 6th July, 1867. The record does not show that the certificate had any seals on it when it was left for record, or that it ever had been sealed. The defendants' counsel objected to the record, because of this defect. The objection was overruled, and the defendants' counsel excepted. Parol evidence was given that the certificate was in fact executed under seal. On the 26th, of June, 1868, a meeting was held of the Bly party, pursuant to notice regularly given at the meeting Statement of case. house. Trustees were elected and a certificate prepared and signed by the officers presiding, purporting to organize a corporation, to be called the Lutheran St. Jacob's Church of Eden. The certificate was filed and recorded on the 6th July, 1868. Further facts appear in the opinion. George W. Cothran, for appellants. The complaint should be dismissed, for the reason that plaintiffs had failed to establish title or right to the possession of the locus in quo. (Den v. Hay, 1 Zabr., 174; 3 R. S. [6th ed.], 572, § 3; Owens v. Mis. Soc., etc., 14 N. Y., 380; Leonard v. Burr, 18 id., 96; Jackson v. Cory, 8 J. R., 385; Hornbeck v. Westbrook, 9 id., 73; 23 N. Y., 366.) The attempt to incorporate the society in 1867 was inoperative and void, because the certifi cate of incorporation was fatally defective in not being under seal. (2 R. S. [6th ed.], 413, § 4; id., 410, § 1.) The election held at Ritter's house was void, because none of the persons who voted were qualified to vote. (2 R. S. [6th ed.], 416, § 15.) The temporalities of a religious corporation are under the control of a majority of the congregation. (Graw v. Prussia Ger. Soc., 36 N. Y., 161; Watkins v. Wilcox, 66 id., 654; 2 R. S. [6th ed.], 416, § 15.) William C. Johnson, for respondents. The plaintiff was duly incorporated. (2 R. S. [6th ed.], 413.) Ejectment was the proper remedy. (First Bap. Ch. v. Witherell, 3 Paige, 269, 299-302; Grant v. Prus. Germ. Soc., 36 N. Y., 161, 163; First M. E. Ch. v. Filkins, 3 T. & C., 279; 29 Barb., 31; 21 N. Y., 269; Corbitt v. Ref. Dutch Ch., 54 id., 551.) The plaintiff's incorporation exhausted the old society, and it became merged therein, so that another corporation could not be formed out of it which would succeed to any of its rights. (2 R. S., 413; 3 Paige, 296.) Plaintiffs and its members, having in all things conformed to the conditions of the deed, have a right under it to control the property against all those who have become excluded mem |