I agree with Mr. Justice Wenzel in his opinion that the judgment appealed from should be reversed, and in his statement of the reasons which require that determination. We disagree only with respect to the disposition of other issues, which could be decided either way, without changing the result.
If we have correctly decided, as I believe we have, that matters affecting the pastoral relation, such as the election of a rector in a Protestant Episcopal Church are governed by the laws of the church, and not by the provisions of our statute *268(Religious Corporations Law, § 42), there remains but one question to be determined, and that is whether Dr. Sidener was elected by a sufficient vote at a meeting attended by persons whose positions and number qualified them to act, according to the relevant ecclesiastical law. Concededly, the required canonical procedure was followed in all other respects. In the decision of that question it can make little difference whether we regard the judgment pronounced by the Bishop at the service of institution as an authoritative ecclesiastical determination which we are required to treat as binding on the civil courts, or merely as evidence of the ecclesiastical law. Either course should lead us to the same conclusion, and it is not essential that we decide which course to follow. However, if it be assumed that the Bishop’s judgment is a determination which is binding on the civil courts, I see no reason why it may not be so considered as a ground for reversal. It is true that the fact of the judgment was not pleaded in the supplemental complaint. It was established however, by evidence received on the trial, and the question has been briefed and argued on this appeal, all without objection that it was not within the issues. We may, consequently, consider the supplemental complaint amended to conform with the proof or disregard the defect in the pleading. (Cf. Farmers’ Loan & Trust Co. v. Housatonic R. R. Co., 152 N. Y. 251; Sweeney v. City of New York, 225 N. Y. 271, 274; Pattison v. Pattison, 301 N. Y. 65, 68; Gorham v. Arons, 306 N. Y. 782; Nirenstein v. George A. Horvath, Inc., 286 App. Div. 409, 412.)
Again, if we have correctly decided that the procedure to he followed in the election of a rector is provided by the canon law, and, consequently, is not governed by section 42 of the Religious Corporations Law, it is not necessary to determine whether the provisions of that section of the statute were complied with at the meeting at which Dr. Sidener was elected. In view of the contrary conclusion expressed by the learned Official Referee, however, and the reliance of the defendants on the quorum provisions of that section, some further discussion of the question may he in order.
The vestry, or trustees of a Protestant Episcopal Church incorporated in this State, consist of the churchwardens and the vestrymen, together with the rector, when there is one (Religious Corporations Law, § 41). There must be 2 churchwardens, and there may he 3, 6, 9, 12, 15, 18, 21 or 24 vestrymen (Religious Corporations Law, § 40). In the Church of the Holy Trinity, the authorized number of vestrymen was 9. At the time of Dr. Sidener’s election, there being no rector, *269the whole number of the members of the vestry if all positions were filled was 11. Dr. Sidener was elected by the unanimous vote of two churchwardens and four vestrymen, which was that of a majority of the vestry and fully complied with the provisions of section 42, insofar as they purport to govern such an election.
The Religious Corporations Law was first enacted, substantially in its present form in 1895. (L. 1895, ch. 723.) Section 32 (later renumbered 42) made provision for the notice necessary to call a meeting of the vestry or trustees, and the persons and number necessary to constitute a quorum at a vestry meeting. If there was a rector no meeting could be held without his attendance and that of at least one churchwarden and a majority of the vestrymen (subd. numbered 1), or both churchwardens and one less than a majority of the vestrymen (subd. numbered 2) unless the rector was absent from the diocese, and had been so absent for over four months, or unless the meeting had been called by the rector, and he was absent therefrom or was incapable of acting. In any of such events, a vestry meeting could be held without the rector’s presence, if there were present one churchwarden and a majority of the vestrymen, or both churchwardens, and one less than a majority of the vestrymen (subd. numbered 3). However, the vestry could meet, if there was no rector, if all members were present, or if notice of the meeting had been given by a churchwarden, and at such a meeting the vestry could, subject to the canons of the church and the diocese, by a majority vote, elect a rector to fill the vacancy (subd. numbered 3). The latter provision, contained in the last sentence of the section, was the only one which referred specifically to the election of a rector, or which purported to state the number of votes necessary for such action. No other provision was made for the composition of a quorum at such a meeting.
These quorum provisions were inadequate to provide for the procedure to be followed under all circumstances. No provision was made for a quorum consisting of less than all the members at a meeting of the vestry for the transaction of corporate business if there was no rector. Neither was provision made for the transaction of corporate business if there should be a rift between the rector and the vestry. In such a case the rector could at least seriously impede action by the vestry by refusing to call, or attend a vestry meeting. As far as the statute did make specific provisions for quorums, however, it was understandable and unambiguous, and appears to have been designed, except as provided in its last sentence, to require for valid *270action by the vestry, meeting as corporate trustees, the attendance of a majority of the whole number of its members including at least one churchwarden. In the computation of the majority, the rector was counted as a member, unless he was absent from the diocese and had been so absent for more than the stated period, was incapable of acting, or had called the meeting and was absent therefrom. In any one of these three instances, which the Legislature apparently regarded as equivalent to a temporary vacancy in the office, or an indication of acquiescence in the action proposed to be taken which could not, in any event, impair his rights, the rector was not counted as a member for the purpose of the computation of the majority. The last sentence of the section was intended to govern the procedure at a meeting of the vestry, when there was no rector, to discharge an ecclesiastical duty. Here the statute purported to authorize action by a majority vote, subject however to the canon law.
Although the words “ subject to ” may not be capable of a precise definition which would be appropriate under all circumstances, their meaning in the instant case, when read in their context, is reasonably clear, on consideration of the purpose of the act, and the legislative intent, otherwise expressed (see Eeligious Corporations Law, §§ 5, 25, inter alia), to leave religious organizations free to administer ecclesiastical affairs according to the laws, discipline, rules and usages of the religious denomination or ecclesiastical governing body with which each such organization might be connected. The words “ subject to the canons ” of the church and diocese clearly meant that there could be no valid election of a rector without full compliance with the relevant canon law. (See Fiske v. Beaty, 206 App. Div. 349, affd. 238 N. Y. 598; Ackley v. Irwin, 69 Misc. 56, 58.) It seems just as clear that they did not mean that both the canon law and the statute law should be complied with, if the two were in conflict. Both the right to elect, and the requirement for a majority vote were expressly made subject, or subordinate, to the canon law, or to state the provision in another way, the concurring vote of a majority of the vestry was required, unless a different procedure was provided by the canon law. It is not disputed that under the statute as originally enacted, or if the later amendment of the statute worked no change in the composition of a quorum at a meeting to elect a rector, the validity of Dr. Sidener’s election could not have been questioned.
Despite the inadequacy of this portion of the statute, herein-before referred to, it remained unchanged for 24 years. In 1919, section 42 was amended so as to provide that if the rector of a *271parish or church should refuse or neglect to call a meeting of the vestry or trustees on the written request of two thirds of the wardens and vestrymen, the meeting should be called by the clerk. (L. 1919, ch. 267.) It was simultaneously provided, by the amending act, that the vestry could hold meetings in the absence of the rector, if there were present one churchwarden, and one more than a majority of the vestrymen, or both churchwardens and a majority of the vestrymen. As the statute now reads, if there is a rector, the vestry may transact the corporate business at a meeting if there are present besides the rector a majority of the whole number of wardens and vestrymen (subd. numbered 1) or, as has been stated, in the absence of the rector if there are present one churchwarden and one more than a majority of the vestrymen, or both churchwardens and a majority of the vestrymen (subd. numbered 2). The vestry may also act in the absence of the rector as provided in the third numbered subdivision of the section, which remained unchanged, under any of the conditions therein specified. There was no change in the provisions of the last sentence. The statute still provides, as it did in 1895, that the vestry may, subject to the canon law, by a majority vote, elect a rector.
It is defendants’ position that this amendment resulted in a statutory quorum requirement, too clear to permit resort to any other means for its construction (cf. Meltzer v. Koenigsberg, 302 N. Y. 523) and that by clear and unambiguous provisions the statute now provides that no meeting may be held to elect a rector without the presence of one churchwarden or both, and the number of vestrymen required by subdivision numbered 2 of the amended section. I am unable to agree that such was the result of the amendment. However clear this quorum provision may appear to be when separated from the rest of the section, its ambiguity becomes evident when it is read in its context, and the necessity for construction becomes for that reason quite apparent. (Cf. People ex rel. Sav. Bank v. Butler, 147 N. Y. 164,167; Cummings v. Board of Educ. of City of N. Y., 275 App. Div. 577, 586, affd. 300 N. Y. 611.) When we read the amended section as a whole, its second numbered subdivision appears to have been intended merely to provide for the quorum necessary to transact business at a meeting called by the clerk, after the neglect or refusal of the rector to call it. Such a purpose appears to be consistent with the plan evident in the original enactment to provide for corporate action through a majority of the vestry, and such construction would avoid inconsistencies and conflict between the various provisions of the section, which would be apparent if it were construed as defendants interpret it. For *272instance, if it were intended by the second numbered paragraph to provide for the quorum necessary for action at a vestry meeting, if there was no rector, it is difficult to understand why one more than a majority of the vestry should be required to attend when, under the third numbered subdivision the vestry could act through a bare majority computed without counting the rector as a member if he was absent from the diocese or incapacitated.
However, we are not required to determine whether the provisions of subdivision numbered 2 may, or must, be so narrowly construed. If by force of its plain language it must be held to provide for the quorum necessary at a vestry meeting to transact corporate business, if there is no rector, it does not follow that it provides for a similar quorum at a meeting to elect a rector to fill a vacancy. So construed it would be in direct conflict with the provisions of the last sentence of the section which were obviously intended to govern such an election and which remained, after the amendment, precisely the same as they had been for 24 years prior thereto. I find no evidence in the amendment of 1919 of any legislative intent to change the rule with respect to such elections, or to provide that, after the effective date of the amendment, the Protestant Episcopal churches of this State might follow their canon law in a matter of such grave ecclesiastical concern, only if their vestries should act through statutory quorums. The rector of such a church is by force of our statute (Religious Corporations Law, § 41) a member of the board of trustees of the church corporation by virtue of his rectorship, and thus is given a voice in the management of the corporate business. No one disputes the right of the Legislature so to provide. It is far different, however, to say that the rector of a Protestant Episcopal church, duly instituted and commissioned as such, according to the canons, rules and usages of the church and the diocese, may not discharge the religious duties and responsibilities, incident to his position, in the spiritual leadership and guidance of his congregation, and in the control of worship in the church and the buildings used for parochial purposes, unless he has first qualified as a corporate director according to the laws of the State. It is not in that capacity that he conducts divine services, administers the sacraments or performs the religious rites and ceremonies of the church. None of the powers which the rector exercises on such occasions are conferred upon him by the congregation or “ by the corporation, by its vestry, or by its corporators.” (Fiske v. Beaty, 206 App. Div. 349, 356, supra.) As was said in the Fiske case (pp. 356357):
*273“ The true doctrine of the Protestant Episcopal Church in America, in relation to the sources of power of a priest or rector, as we understand it, is correctly expressed as follows: ‘ In the 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.) ” Any attempt to restrict such power or the discharge of the religious duties incident thereto by the imposition of conditions prescribed by the State would constitute an unwarranted intrusion into the internal affairs of the church, violative of the constitutional guarantee of freedom of religions from such governmental interference, and a serious threat to freedom of religious worship. I am unable to agree that such was the legislative intent in the amendment of section 42 of the Religious Corporations Law, and we are required to find that it was not, if we may properly do so. A statute must be construed if possible “ in manner which would remove doubt of its constitutionality, and possible danger that it might be used to restrain or burden freedom of worship.” (People v. Barber, 289 N. Y. 378, 385.) The amendment of section 42 in 1919 made no change in the statutory language which provided for the vote, and consequently the quorum necessary to elect a rector, by stating that the vestry could act in such a matter by a majority vote, subject to the canon law. No change in this rule was intended or effected, and the vote by which Dr. Sidener was elected in compliance therewith was entirely sufficient for that purpose. Although I do not believe that plaintiffs may have all the relief demanded in the supplemental complaint, that question may be determined on the settlement of our order.
I concur for reversal and for judgment in favor of the plaintiffs.