Sutter v. Fauble — 32 N.Y. Sup. Ct. 195

Majority

p. 195

PETER SUTTER and Others, as the Board of Commissioners of Excise of the Town of New Lots, ex rel. M. S. REEVE, Appellant, v. GEORGE FAUBLE, Respondent.

Headnote

Mccise law — Action for penally under, in whose name to he brought.

Chapter 109 of 1878, conferring power upon boards of excise to sue for penalties for violations of the excise law, does not, in case they fail to prosecute for the penalty, enlarge the right given by chapter 820 of 1873, providing that “ any other person may prosecute therefor in the name of the overseers of the poor,” and authorize “any other person” to prosecute in the name of the board of excise.

p. 196

Appeal by M. S. Reeve, the relator in the above entitled action, from an order of the Kings County Special Term, setting aside the summons herein and dismissing the action.

The action was commenced by the service of a summons, and, so far as appears by that paper, by the commissioners of excise, no relator’s name appearing therein. 1 It was brought to recover a penalty under chapter 628 of 1857, chapter 175 of 1870, and chapter 549 of 1873, and chapter 820 of 1873, relating to the sale of intoxicating liquor.

Wm. II. Mundy, for the relator, appellant.

Wm. J. Gaynor. for the respondent.

There is no legislative power enabling the relator Reeve to maintain this action in the name of the plaintiffs as commissioners of excise.

By the act of 1857 (chap. 628) certain penalties for unauthorized sales of strong and spirituous liquors and wines were to be sued for by the overseers of the poor of the town or city in which the penalty was incurred. (Sec. 22, as amended by chap. 820, Laws of 1873.) In case the parties, whose duty it was to prosecute for the penalties, failed to do so, then “ any other person may prosecute therefor in the name of the overseers of the poor ” of the town. (Sec. 30, as amended by chap. 820, Laws of 1873.) In 1878, the legislature again amended section 22 of chapter 628, Laws of 1857, by conferring the power upon boards of excise to sue for these penalties in their town when there was no overseer of the poor.

Section 30, as amended in 1873, was left unamended so that all persons who sued by reason of the neglect of “ parties or persons whose duty it is to prosecute,” would still be compelled to sue for the same in the name of the “ overseer of the poor ” of the town in which the alleged penalty was incurred. There is no overseer of the poor in New Lots, but that fact would not authorize courts to enlarge the power of a relator to sue in the name of the plaintiff beyond the plain words of the act.

No doubt it was the intention of the legislature to permit suits

p. 197

in the name of boards of excise when they neglected their duty, but no such intent is expressed, on the contrary a different plaintiff is named.

The order should be affirmed, with costs and disbursements.

Dykman, J., concurred ; Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.