By the Court,
E. Darwin Smith, J.The questions raised upon the motion for a nonsuit, on the trial of this action, have all, in substance, been previously disposed of in the case of The same plaintiffs v. Smith, (36 Barb. 576,) and The Same v. Greenwood, (40 id. 72.)
The chief question not thus previously passed upon, now arises upon offers of the defendant to give certain proof, which was excluded. The defendant offered to show that a board of trustees was elected at Marion by the Wayne County Baptist Association; that there was no adjournment of the board to Palmyra; that no trustees were elected at Macedón or Palmyra by this association; and that the plaintiffs had not derived title to the subscription from or through the Marion trustees of said association. At another stage in the cause, the defendant’s counsel further offered to prove, that “ the trustees upon whose action the plaintiffs claim to recover in this case were not elected at Marion, or any other place,"by the Wayne County Baptist Association; and that another board of trustees was elected at Marion.” These propositions are substantially the same, and tend to the same end. They were directed to disprove allegations of the plaintiffs’ complaint, and were obviously, for that reason, admissible, if the allegations which they sought to disprove were *223essential .to the plaintiffs’ right of recovery. It was error to exclude evidence tending either to prove or disprove a material issue in the cause. The evidence offered must have been excluded, by the circuit judge, upon the ground that it did not tend to establish or disprove a material issue. When this evidence was offered, the plaintiffs had proved their incorporation, by a charter from the regents of the university duly granted; and that the trustees named in such charter met in July, 1855, and duly organized as a board of trustees; that they proceeded to purchase a lot for their proposed college building, and to make contracts for the construction of such building, and to incur other expenses. That in the fall of that year they made calls upon the subscribers upon their subscriptions, and that the defendant paid one of such calls; that they made subsequent calls; and that the defendant on repeated occasions recognized his subscription as binding, and, on some, promised payment; that the work had progressed by" degrees, and had been suspended from time to time for want of funds, till they had constructed the building two stories high. Upon this and other evidence upon the same points the question arose, as one of fact, whether the defendant had recognized the plaintiffs as the legal body authorized to proceed to erect said collegiate institute, and to enforce his subscription, and entitled to regard him as requesting them to proceed with said work upon the basis of his subscription, with others, and had not waived all objection, if any existed, to the appointment of trustees, &c. (17 How. 287.) It was upon the assumption that there was evidence upon this issue sufficient to warrant the jury in finding against the defendant that the circuit judge doubtless overruled the defendant’s offers, as they did not bear upon this issue. The case was submitted to the jury, and it seems no objection or exception was taken to the charge. We must presume, therefore, I think, that the question of the' defendant’s liability was properly presented and submitted to the jury upon this distinct question, whether he had recognized the plaintiffs as duly *224organized, and the proper authorities to collect and enforce his subscription, and had, after the incorporation of the plaintiffs, requested them to proceed with the work of constructing said institution. The jury must be deemed to have found this issue, upon a proper submission to them, against the defendant. Upon this assumption, the evidence offered by the defendant, and excluded as aforesaid, was entirely immaterial. If the plaintiffs’ action had been based entirely upon siibscription papers, independently of the payment and admissions of the plaintiffs after the charter had been obtained, it would then undoubtedly have been necessary for the plaintiffs to show that the trustees named in the charter had been duly appointed at the meeting at Macedón on the 30th of May, 1855, or, as we held in the case of Greenwood, (supra,) at some meeting of the Wayne County Baptist Association duly continued by adjournment from such meeting at Marion.
But as this case appeared at the circuit, where these offers were made, I think the evidence was immaterial, and that the exception taken to its exclusion was not well taken. If given, it would not have precluded the plaintiffs from a recovery upon the grounds above stated, which the defendant was at perfect liberty to controvert. The offer to show that some disagreement afterwards existed among the baptist denomination, and that resolutions were passed at some meetings of the Wayne County Baptist Association in 1861, cautioning the public against subscriptions to or aiding the plaintiffs in the said enterprise, were properly excluded. They could not discharge or affect the defendant’s liability. The request to the judge to submit to the jury the question whether the work upon the building referred to had been abandoned, was properly denied. There was no evidence to warrant such a finding; and if there had been, the defendant would be responsible, in proportion to the other subscribers, for the debts and expenses incurred by the plaintiffs.
*225[Monroe General Term, December 5, 1864.Upon the whole case, I think the motion for a new trial should be denied.
New trial denied.
J. C. Smith, Welles and E Darwin Smith, Justices.]