Plaintiff the Sector, Churchwardens and Vestrymen of the Church of the Holy Trinity, Brooklyn, New York, hereinafter referred to as the Parish, is an incorporated Protestant Episcopal Church, is a subordinate member of the Protestant Episcopal Church in the United States of America, hereinafter referred to as the General Church, and, as such member, is under the jurisdiction of the General Church Diocese of Long Island in the State of New York, hereinafter referred to as the Diocese. Plaintiff Herman S. Sidener and defendant William Howard Melish are ordained priests of the General Church. The three other defendants are vestrymen of the Parish.
Plaintiffs alleged in their supplemental complaint (1) that Dr. Sidener was elected rector of the Parish, which position had been vacant, (2) that his election was canonically “ finalized ”, (3) that the employment of Mr. Melish as assistant minister of the Parish was terminated, all in February, 1956, (4) that nevertheless Mr. Melish refused to surrender, the Parish register and keys to Dr. Sidener and the two churchwardens of the Parish, and (5) that the defendant vestrymen have aided and abetted Mr. Melish’s efforts to control the worship and spiritual jurisdiction of the Parish and its appurtenances and furniture and have unlawfully interfered with the property, funds and management of the Parish. Upon these allegations, they sought a judgment declaring the rights and legal relations of the parties and granting injunctive relief.
In a dispute between contending factions of a church society, courts have no jurisdiction unless civil or property rights are involved, and may inquire into ecclesiastical or doctrinal questions “ only insofar as it may be necessary to do so to^ determine the civil or property rights of the parties. The civil courts do not interfere with ecclesiastical matters in which temporal rights are not involved” (Cadman Mem. Cong. Soc. of Brooklyn v. Kenyon, 279 App. Div. 1015, 1074, 1075, affd. 306 N. Y. 151; see, also, Watson v. Jones, 13 Wall. [U. S.] 679, 718, 733; Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 110-116, 120-121; Baxter v. McDonnell, 155 N. Y. 83, 100-102; Connitt v. Reformed Prot. Dutch Church of New Prospect, 54 N. Y. 551, *259560-563; Stallings v. Finney, 287 Ill. 145, 148; Mendelsohn v. Gordon, 156 S. W. 1149, 1151 [Tex.]).
Although the matter of selecting a clergyman for a church is ecclesiastical, it is within the province of the court to determine a dispute as to a given selection where, as here, questions of control and management of temporalities will be settled by the determination of such disputed ecclesiastical matter (see Kedroff v. St. Nicholas Cathedral, supra, pp. 115-116, 120-121,122; Fiske v. Beaty, 206 App. Div. 349, affd. 238 N. Y. 598).
It is undisputed that plaintiffs’ proof at the trial established that Dr. Sidener became the rector of the Parish as a result of (1) action taken at meetings of the Parish vestry, (2) the statement by the Bishop of the Diocese that he was satisfied that Dr. Sidener was a duly qualified minister, (3) Dr. Sidener’s acceptance, (4) the recording of the election by the secretary of the Diocese, all in February, 1956, and (5) Dr. Sidener’s institution as rector thereafter on March 5, 1956 by the Bishop, and further established that Mr. Melish was discharged at another meeting of the vestry on February 14, 1956, subject to a question of law, namely, whether the action taken at the said meetings of the vestry was invalid by reason of the absence of a quorum.
Defendants have contended that section 42 of the Religious Corporations Law and, more specifically, numbered subdivision 2 thereof, governs as to what constitutes a quorum for a meeting of the Parish vestry and that, by virtue of the provisions therein a quorum was not present at the said meetings. The section is part of article 3 of that law, which article deals with and is entitled “ Protestant Episcopal Parishes Or Churches ”.
The learned Official Referee was of the opinion that the issue was governed by the Canons of the General Church and those of the Diocese and also by the said provisions in the State statute, that according to the provisions of the State statute a quorum was not present, and that no evidence was offered which would permit a finding that the canons had provisions different from those of the State statute. He accordingly determined this controversy in favor of the defendants.
A controversy concerning an ecclesiastical matter may not be determined upon the authority of a civil statute. If indeed the civil statute must be read as intending to govern as to the subject ecclesiastical matter, it would be unconstitutional. As was stated by Mr. Jusice Reed in the majority opinion in Kedroff v. St. Nicholas Cathedral (344 U. S. 94, 107-108, 116, supra): “ Legislation that regulates * * * the appointment of *260clergy ” would be violative of the Fourteenth Amendment of the Constitution of the United States in that it would attempt to dictate in matters of religion, and this is so even though the statute requires conformity to church “ ' faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the ” church, for such conformity would be “by legislative fiat and subject to legislative will. Should the state assert power to change the statute requiring conformity to ancient faith and doctrine to one establishing a different doctrine, the invalidity would be unmistakable ’ ’, and ‘ ‘ Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.”
Accordingly, we must look to the laws of the Protestant Episcopal Church. Canon 13 of the Canons of the General Church, which canons shall hereinafter be referred to as the General Canons, is entitled “ Of Parish Vestries ” and provides that ‘ ‘ In every Parish of this Church the number, mode of election, and term of office of Wardens and Vestrymen * * * shall be such as the State or Diocesan law may permit or require ”; that “ Except as provided by the law of the State or of the Diocese, the Vestry shall be agents and legal representatives of the Parish in all matters concerning its corporate property and the relations of the Parish to its Clergy ”, and that “ Unless it conflict with the law as aforesaid, the Rector, when present, shall preside in all the meetings of the Vestry.”
Sections 40 and 41 of the Religious Corporations Law permit the incorporation of a Protestant Episcopal parish or congregation. Section 40 further provides that there shall be two churchwardens of such corporation and such number of vestrymen as shall have been determined at the meeting of the parish or congregation at which it was decided that the parish or congregation be incorporated. Section 41 further provides that “the churchwardens and vestrymen * * *
together with the rector, when there is one, shall form a vestry and shall be the trustees of such church or congregation ”. In the Parish with which we are concerned in this controversy, the number of vestrymen was fixed at nine. Trustees, by virtue of section 5 of the statute, “ have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom ”.
Although the rector thus is an official of the corporation, he nevertheless functions primarily and principally as an ecclesiastic. As was said in Fiske v. Beaty (206 App. Div. 349, 356-*261357, supra), a rector “ in Ms rectorial capacity is not an officer of the corporation”; “none of his strictly rectorial powers are conferred upon him by the corporation, by its vestry, or by its corporators” and “‘In the [Protestant Episcopal] Church, power does not ascend from the congregation or the vestry to the rector; it descends from above to the Bishop and through the Bishop to the subordinate ministry.’ (White’s Church Law [ed. 1898], 185.) ”
Having indicated hereinabove that civil legislation which purports to regulate ecclesiastical matters would be unconstitutional, it behooves us at tMs time, in view of our reference to sections 40 and 41 of the Religious Corporations Law and the further references which we shall make to other provisions in that law, to advert to the subject of what the true purpose of the Religious Corporations Law of this State is. As to this, we can do no better than to quote from the majority opimon by Conwat, J. (now Ch. J.), in the Kedroff case when that case was before the New York Court of Appeals (St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N. Y. 1, 29): “ The primary purpose of the Religious Corporations Law is to provide for an orderly method for the administration of the property and temporalities dedicated to the use of religious groups and to preserve them from exploitation by those who might divert them from the true beneficiaries of the trust.”
Despite their dealing with the ecclesiastical office of rector, sections 40 and 41 should be read, therefore, as should all sections of the statute which refer to ecclesiastical matters, as intending to deal only with methods ‘ ‘ for the administration of the property and temporalities ” of religious groups.
As to duties and powers of the vestry insofar as they relate to filling a vacancy in the position of rector, we find pertinent provisions in General Canon 47, which canon is entitled “ Of the Filling of Vacant Cures”. It provides that “ When a Parish or Congregation becomes vacant the Churchwardens or other proper officers shall notify the fact to the Bishop ” (§1), that there shall be no election of a rector until the name of the proposed candidate has been given to the Bishop and the Bishop has been given not more than 30 days “ to communicate with the Vestry thereon ”, and until such communication, if made, “has been considered by the Parish or Vestry at a meeting duly called and held for that purpose ” (§ 2), and that “ Written notice of the election, signed by the Churchwardens, shall be sent to the Ecclesiastical Authority of the Diocese. If the Ecclesiastical Authority be satisfied that the
*262person so chosen is a duly qualified Minister, and that he has accepted the office, the notice shall be sent to the Secretary of the Convention, who shall record it. And such record shall be sufficient evidence of the relation between the Minister and the Parish.” (§3.)
Canon 23 of the Canons of the Diocese, which canons shall hereinafter be referred to as the Diocesan Canons, is consistent with, and implements, General Canon 47. It states that the duty to notify the ecclesiastical authority of a vacancy in a parish is that of the vestry (§ I), that respective meetings of the vestry shall be held for the purpose of selecting a candidate to be proposed to the ecclesiastical authority and for the purpose of electing a rector (§§ II, III), and that, after the election and presentation of the elected rector to the ecclesiastical authority by certificate of the churchwardens, “ The Ecclesiastical Authority being satisfied that the person so chosen is a duly qualified presbyter, and that he has accepted the office, shall send the instrument of presentation to the secretary of the convention who shall record it ” (§§ IV, V).
As to the canonical provisions with respect to quorums for * meetings, we turn to General Canon 11, which canon is entitled ‘ ‘ Of Standing Committees ’ ’. Parenthetically, it might be noted that the function of the standing committee of a diocese is to advise the Bishop (§ 1) and, under certain circumstances, the standing committee may temporarily become the ecclesiastical authority (§3). The provisions as to quorum constitute section 2 of this canon, which section reads as follows: “In all cases in which a Canon of the General Convention directs a duty-to be performed, or a power to be exercised, by a Standing Committee, or by the Clerical members thereof, or by any other body consisting of several members, a majority of said members, the whole having been duly cited to meet, shall be a quorum; and a majority of the quorum so convened shall be competent to act, unless the contrary is expressly required by the Canon.”
We have heretofore referred to the meetings at which action was taken with reference to Dr. Sidener’s election. More specifically, the meetings were held on February 6 and 7, 1956. At the first of these two meetings it was resolved to propose to the Bishop the election of Dr. Sidener. At the second of these meetings it was resolved that Dr. Sidener “be and he hereby is elected Rector ” At both meetings the two wardens and only four vestrymen were present. The three vestrymen who are defendants in this action were absent and the remaining two offices of vestrymen were vacant. Respective approvals *263by the Bishop followed each of these meetings, that is, of the proposal and of the election. Dr. Sidener himself accepted the call and the secretary of the Diocese recorded the fact of the election.
At the meeting of February 14,1956, at which it was resolved that Mr. Melish’s services were terminated, there were in attendance the two wardens and the same four vestrymen who had attended the two earlier meetings, Dr. Sidener as rector, and two other persons who were purportedly elected to the vacant positions of vestrymen early in the meeting. Thereafter, the standing committee recommended to the Bishop that he institute Dr. Sidener as rector, that is, confer ecclesiastical power upon Dr. Sidener as rector of the Parish. The procedure and service for such institution is set forth in a rubric in the Book of Common Prayer (p. 569 et seq.), of which the Official Referee took judicial notice. Presence of the Bishop or a priest appointed by him as institutor, attended by the new incumbent and the other clergy present, and presence of members of the vestry are contemplated. The Bishop or the appointed institutor is required, among other things, to ask if anyone present can show just cause why the new incumbent may not be instituted and, if objection be then offered, he “ shall judge whether it afford just cause to suspend the Service ” and determine whether “ to go on with the Service ”.
On March 5, 1956 the institution took place. In accordance with the said rubric the Bishop asked if there were objections. Three persons voiced objection, generally on the ground presented in this action and on the ground of the pendency of, and the proceedings in, this action. Of these three persons, two were vestrymen who are defendants in this action and the third was the attorney for Mr. Melish. The Bishop overruled the objections, stating that he was “ acting under the Canons of the Church and not under a corporation law. Under the Canons of this Church, Dr. Sidener has been duly and properly elected. * * * There are two matters that are required
by the Canon; one is to the election of the Rector and the other is to his worthiness. * * * It is therefore my solemn judg-
ment that there is no valid objection, either Canonical or otherwise, to the institution of The Reverend Herman S. Sidener, S.T.D. and I will therefore proceed with the office of the institution.”
When there is before a civil court for determination a dispute between factions of a religious congregation concerning an ecclesiastical matter and the congregation in question is a subordinate member or part of a general church organiza*264tion “ in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization ”, the weight of authority in this country, contrary to the rule in English courts, is that ‘ ‘ whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them ” (Watson v. Jones, 13 Wall. [U. S.] 679, 722-723, 727, supra; St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N. Y. 1, 13, revd. on other grounds sub nom. Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, supra; Trustees of Presbytery v. Westminster Church, 222 N. Y. 305, 315; Rector, Church Wardens and Vestrymen of Church of Holy Trinity in City of Brooklyn v. Melish, 194 Misc. 1006, 1017, affd. 276 App. Div. 1088). This rule of comity was justified in Watson v. Jones, supra, p. 729, as follows: ‘‘ Each of these large and influential bodies (to mention no others, let reference be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian churches), has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collection of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so.”
In our opinion, the pronouncement by the Bishop at the institution of Dr. Sidener constituted an ecclesiastical decision which could have been asserted successfully by plaintiffs in this action as having binding effect upon the court. The fact of the decision was not pleaded in the supplemental complaint and therefore, even though it was proved at the trial, it may not be considered as determinative of the issue of Dr. Sidener’s election. A judgment should be secundum allegata et probata. “ Any substantial departure from this rule is sure to produce surprise, confusion and injustice.” (Lamphere v. Lang, 213 N. Y. 585, 588.) A plaintiff “ must bring his case within the allegations as well as within the proof” (Stevens v. Mayor, Aldermen & Commonalty of City of N. Y., 84 N. Y. 296, 305). *265There are permissible exceptions to the rule, namely, where proof of the unpleaded fact in question was given at the trial without objection and the trial court ordered the pleadings conformed to the proof, or where in fact the real issue which was actually tried embraced such unpleaded fact (Romeyn v. Sickles, 108 N. Y. 650, 653; see Gorham v. Arons, 306 N. Y. 782). In the instant case it was never indicated at any time during the trial that plaintiffs relied on the Bishop’s pronouncement as binding on the court, no motion to conform the pleadings to the proof was made, and it does not appear that the Official Beferee gave any consideration to that theory. We note parenthetically that, although generally an appellate court itself may amend the pleadings to conform to the proof only for the purpose of affirming a judgment and not in order to reverse one (Volkening v. De Graaf, 81 N. Y. 268, 272; Amherst Coll. v. Ritch, 151 N. Y. 282, 337; McCaddon v. Central Trust Co. of N. Y., 229 N. Y. 560, affg. 182 App. Div. 846), it may order such amendment for either purpose where the proved but unpleaded facts were involved in the real issue which was tried (Gorham v. Arons, supra), but, as stated above, the Bishop’s pronouncement was not presented at the trial as a determinative factor in the case.
However, we reach the same conclusion as did the Bishop. In our opinion, section 2 of General Canon 11, hereinabove quoted, governs as to the matter of a quorum at the meetings of the vestry with regard to the election of a rector. By its own terms, it is applicable to “ all cases in which a Canon of the General Convention directs a duty to be performed, or a power to be exercised, by * * * of by any other body consisting of several members”. The phrase “by any other body consisting of several members ” has an extensive cannotatation. We do not see how it may reasonably be said that a body in the church, such as the vestry, is not within it. We do not believe that the general convention, in adopting section 2 of General Canon 11, was not conscious of the fact that the vestry at least might be regarded as within the embrace of this broad phrase. The vestry is too important a body in the church to have been overlooked in this connection. It is the governing body of the pafish as to its temporalities and it has an important place ecclesiastically as well, viz., in the election of a rector. The canons make no separate or other provision as to the quorum of a vestry. Under the circumstances we believe that, had the intention been to exclude the vestry from the phrase, such intention would have been expressed.
*266The fact that General Canon 11 is entitled “ Of Standing Committees ”, and that much of it is concerned with such committees in every diocese, does not require a contrary construction of section 2 thereof. The fact is that this canon does contain further express provisions dealing with other functionaries in the church, besides those generally contemplated by the said phrase “ any other body ”. If the intention were to limit applicability of the provisions of the canon to standing committees, the express inclusion of those other functonaries and of “ any other body ” would defy reasonable understanding.
Although we have reached this view independently of reference to any civil statute, we find support therefor in section 25 of the Beligious Corporations Law. That section is a part of article 2 of that statute, which article is entitled “ General Provisions ”. It states that “ No provision of this chapter [the Beligious Corporations Law] authorizes the calling, settlement, * * * of a minister, or the fixing or changing of his salary, and a meeting of a church corporation for any such purpose shall be called, held, moderated, conducted, governed * * * not as required by any provision of this chapter but only according to the aforesaid laws and regulations, practice, discipline, rules and usages of the religious denomination or ecclesiastical governing body, if any, with which the church corporation is connected.” This is a legislative interdiction against viewing the quorum provisions of section 42 as applicable to meetings held for the election of a rector.
It does not follow from our view of the subject provisions of section 42 that they have no useful purpose. They are applicable to all meetings of the vestry insofar as they do not deal with purely ecclesiastical matters. In so construing section 42 we give heed not only to the principle that the court must ‘‘ assume that every provision of the statute was intended to serve some useful purpose ” (Allen v. Stevens, 161 N. Y. 122, 145), but also to the principles that in doing so the court should “aim to reconcile apparent contradictions” (Hoey v. Gilroy, 129 N. Y. 132, 137), should so far qualify the sections of a statute by each other as to give all of them “ operation in harmony ”, if possible, should subserve each “ to the general intent of the whole enactment” (Ansonia Brass & Copper Co. v. New Lamp-chimney Co., 53 N. Y. 123, 125), and should, “in construing a statute which is reasonably susceptible of two constructions, one of which would render it unconstitutional, and the other valid, * * * adopt that construction which saves its constitutionality” (Matthews v. Matthews, 240 N. Y. 28, 35).
*267It is true that the last sentence of section 42 essays to enter the ecclesiastical field, in that it states that the vestry may by a majority vote elect a rector and fix his salary or compensation, and it may be that no useful purpose can be ascribed to this particular part of the section because it deals only with an ecclesiastical matter. However, that does not prevent our finding a useful purpose for the quorum provisions of this section and our construing those provisions as we have done. Parenthetically, it might be noted that the said last sentence of section 42 nevertheless does expressly bow to the church law. It further states that its said provisions are “ subject to the canons ” of the General Church and the Diocese.
Although we have concluded that reversal may not be grounded on the Bishop’s pronouncement that Dr. Sidener was properly elected, we may regard the pronouncement as evidence of what the church law is in a situation such as this in the same manner that evidence of the law of another jurisdiction is accepted. As evidence it fortifies our independent conclusion that the church law required a quorum of only a majority of the vestry. (If section 42 of the Religious Corporations Law were applicable, its subdivision number 2, as construed by the learned Official Referee, would require the presence of at least a majority of the vestrymen, namely five, in addition to the two churchwardens who were present.)
Since 6 of the 11 members of the vestry were present at the meetings in question, that is, two churchwardens and four vestrymen, a majority was present and there was compliance with the governing requirement for a quorum. All six voted for Dr. Sidener’s election.
The judgment should be reversed on the law and the facts, with costs, and judgment should be entered in favor of plaintiffs, without costs. Findings of fact, insofar as they may be inconsistent herewith, should be reversed and new findings should be made as indicated herein.