Hait v. Benson

Headnote

An action brought to recover a penalty under §§ 13 and 14 of the act entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating

liquors," passed April 16, 1857, by “A. B., C. D., and E. E., board of commissioners of excise,” plaintiffs, complaining and setting out specifically the Whole cause of action as accruing to them as the board of commissioners of excise, is sufficiently brought “ in the mme of the board of commissioners of excise,” as required by § 22 of said act.

This decision seems to overrule the one on this point in Pomeroy agt. Sperry (16 Soio. 211), by holding that the action may be brought in either form—that is with or without the individual names of the commissioners—if “ the board o commissioners of excise" is properly named as plaintiff, and the cause of actior. alleged as accruing to it. The case of The Board of Commissioners of Excise oj Saratoga County agt. Doherty (16 Sow. 211) is affirmed by this decision, as the question there was, whether the action was properly brought without naming the commissioners individually, and it was held that it was properly brought in the name of the board.—Rep.)

This was an action commenced by the above-named respondents, before James H. Brown, a justice of the peace of the county of Ulster, against the appellant, for violations of sections thirteen and fourteen of the act entitled, “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,’’ passed April 16, 1857.

The complaint was as follows:

“ The plaintiffs, as such board of commissioners of excise, in and for the county of Ulster, show to this court, that heretofore, to wit, on the first day of July, 1857, and on each and every day thereafter to the day of the commencement of this action, at the town of Lloyd, in said county, the said defendant, John Benson, became and was indebted to the plaintiffs, the board of the commissioners of excise, as aforesaid, in the sum of fifty dollars, for selling strong and spirituous liquors, or wines, in quantities less than five gallons at a time, without having a license therefor, at his shop in Lloyd aforesaid, contrary to and in violation of the provisions of ‘ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,’ passed April 16, 1857, whereby and where-for an action has accrued to the said plaintiffs, as such board of commissioners of excise, to demand and have of and from the said defendant the said sum: yet the said defendant, al

though, often requested so to do, has not as yet paid the said sums of money, or either of them, or any part thereof—he, the said defendant, hath hitherto wholly refused, and still refuses so to do.

“ 2. And, further complaining, show that the said defendant was, on the first day of July, 1857, at Lloyd, in said county, and on each and every day thereafter, since the said first day of July, 1857, up to the 24th day of June, 1858, indebted to the said plaintiffs, 'the board of commissioners of excise, as aforesaid, in the further sum of fifty dollars, for selling strong or spirituous liquors, or wines, in quantities less than five gallons at a time, without having a license therefor, to wit, one glass of rum, one gill of rum, one glass of brandy, one gill of brandy, one glass of whisky, one gill of whisky, one glass of gin, one gill of gin, one glass of wine, one gill of wine, one glass of beer, one gill of beer, to each of the following named persons, to wit: John Ellis, David Berryann, Peter Decker, Bradley S. Lewis, Bobert Conn, Harvey Dunn, Daniel Donaldson, and others, at his shop in Lloyd aforesaid, on the first day of July, 1857, and on every and each day since, to the commencement of this action, contrary to the provisions of an act of the legislature of the state of Hew-York, entitled, ' An act to suppress intemperance, and regulate the sale of intoxicating liquors,’ passed April 16th, 1857, whereby an action has accrued to the said plaintiffs, as such board of commissioners as aforesaid, to demand and have of and from said defendant the said sum of money above demanded, which defendant has not paid.

“ Wherefore, plaintiffs, the board of commissioners of'excise, as aforesaid, demand judgment against said defendant for the sum of one hundred dollars and costs.”

On the return day of the summons the defendant did not appear. Thaddeus Hait, one of the board, and Solomon G. Young, appeared for the plaintiff.

Solomon G. Young proved that he was authorized to appear for the plaintiffs, and that Hait, Tuthill and Smith formed the board of commissioners.

The plaintiff proved, by several witnesses, violations of the law, and the sale of various kinds of intoxicating liquors.

The justice, on the second day of July, 1858, rendered judgment for the sum of one hundred dollars damages, and four dollars and sixty-eight cents costs of suit, in favor of respondents, who were plaintiffs, and against the appellant, who was defendant.

On the same day, the appellant appealed to the county court of Ulster county, on the ground, among others, that the suit was irregularly brought in the individual names of the plaintiffs.

The county court having affirmed the judgment of the justice’s court, the appellant appeals to this court.