majority">By the Court, Johnson, J.

At the close of the evidence, upon the trial, the justice refused on the defendant’s motion to nonsuit the plaintiff, but decided to submit the question of the defendants’ possession to the jury to find whether they were in possession personally or only as trustees of the 2d Baptist church and society in Geneva; in other words, to determine whether the defendants were in possession, or the corporation through them as its officers. The plaintiff declined going to the jury on that question of fact, and was nonsuited by the justice. The plaintiff’s counsel insists that it is immaterial what the character of the defendants’ possession was; that having admitted themselves to be in possession, the action can be maintained against them, whether they were acting as agents for the corporation or otherwise. The question of possession was a material one on the trial. Without proof of the defendants’ possession at the commencement of the action, the plaintiff could not make out his case. This question the defendants had a right to controvert, and to show that some other person or body was in possession claiming a right; and this question of fact was for the jury to determine. In Helms’ Lessee v. Howard, (2 Har. & McHen. 76,) the court said that “ with what intention, by what right, a person entered into land and possessed it, and to what extent, were questions of fact proper for the consideration and determination of a jury.” This is necessarily so, because the actual occupant must be named as defendant, and it is immaterial who claims to be the owner, if there be an actual occupant. (2 R. S. 204, § 14. Shaver v. McGraw, 12 Wend. 558.) If there be no actual occupant, then the action may be brought against a person claiming title. And it is competent for the defendant to show to the jury that he is laboring upon the premises as the mere servant of another. An idle declaration that the party owns the premises will not be sufficient. It must be a se^ rious intentional claim of ownership, (Banner v. Empie, 5 Hill, 48.)

It then became a material question on the trial, whether the premises were occupied at all. If occupied, whatever claim or pretence the defendants or others might set up in conversation *249amounted to nothing towards maintaining the action. The building was a meeting house, and the proof clearly shows that it was actually occupied, on the sabbath, by the clergyman who officiated and the congregation who worshipped there, and that it was occupied at no other time and in no other way, except occasionally when other meetings were held there, by any one. This society or congregation was known and recognized as the second Baptist church and society of the village of Geneva, which, as the plaintiff in his declaration alledged, was a religious corporation duly incorporated under the laws of this state. Now who were the actual occupants 1 The defendants attended there to worship as others did. But I think no individual or number of individuals can be said to have been actual occupant, or occupants, in the sense of the statute, by merely attending there at stated or occasional intervals. And yet the house was actually occupied. The actual occupant must have been the corporation. A corporation can be an actual occupant and acquire a freehold by disseisin. (Aug. & Ames on Corp. 151.) And it is clear enough that trespass and ejectment in this country will lie against a corporation. (Id. 39. Dexter v. Troy & Sch. Railroad Co. 2 Hill, 629. Bloodgood v. M. & H. Railroad Co. 18 Wend. 9. Brown v. The S. & U. Railroad Co. 5 Hill, 554.) Premises of this description, actually used and occupied by a society for the only purposes for which they are designed and held and in no other way and by no particular individual, must, I think, from the very nature and necessity of the case, be adjudged to be in actual occupancy of the corporation. So that the suit must be brought against the corporation, and will not lie against one of its officers or members who merely attends there for worship. If the agent, officer, or member actually reside upon the premises, the suit might unquestionably be brought against him. But when it is used only as a meeting house its actual occupant is the corporation, and ejectment will lie against that only. Trustees of a church qua trustees, can have only constructive possession by reason of having the right of possession. (People v. Runkle, 8 John. 363.)

The judge was, I think, clearly right in deciding to submit *250the question to the jury as to whether the defendants were actually in possession, or only constructively as trustees. And the plaintiff having declined to go to the jury on that question, was properly nonsuited.

It was, I think, competent for the defendants to prove by parol what body of people occupied the house, and how they were commonly designated and known. The plaintiff was precluded by his declaration from denying that it was a legally constituted body.

New trial denied.

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