Commissioners of Excise for City of New York v. Purdy

Leonard, J. —Motions are made in this and several other similar actions, for an order dismissing them, with costs to be paid by the plaintiffs’ attorneys, on the ground that they are commenced without any authority or lawful right so to do. They are commenced for alleged violations of the “ Act to suppress Intemperance, and to regulate the sale of Intoxicating Liquors,” passed April 16, 1857 (2 Laws of 1857, ch. 628), to recover a penalty of $50, in each case, for the sale of spirituous liquors or wines, in quantities less than five gallons, without a license. It is proven by affidavit, on the part of the defendants, that no complaint had been made to the Excise Commissioners, before the commencement of these actions, that the defendants had violated the said statute; and that the Commissioners had not authorized the commencement thereof. These facts are proved upon information and belief only, but are not denied on the part of the plaintiffs, or by the attorneys who bring the actions. The proof was sufficient to call on the attorneys who instituted the actions for some denial or explanation; and as they [438] have not'thought proper to do so, it must be assumed that none pan be made, and that the statements of the affidavits are true. By section 22 of the act referred to, it is directed that the penalties for which these actions are prosecuted, shall be sued for and recovered in the name of the 'Board of Commissioners of Excise. By section 30 it is further provided, that if the Commissioners shall neglect to prosecute for any penalty provided by the act, for the period of ten days after complaint to them that any provision of the act has been violated, accompanied with reasonable proof of the same, any other person may prosecute' therefor in the name of the Commissioners. It is quite plain that the Legislature have here imposed a-condition with which private persons must comply- before they are authorized to prosecute for the recovery of any'penalty, or to use the official name of the Commissioners as-plaintiffs. The condition is imposed not only for the safety of the Commissioners and the public, but also-to prevent - citizens from being vexed by informers and speculators without .probable cause. The Commissioners do not prosecute these actions; they are brought by some one else using their name. Such party should have proved on this motion that the Commissioners had neglected to take action themselves for ten days after complaint made to them "against these defendants respectively, for violation of The law, and that they had produced before them reasonable proof of the truth of the complaint. ■ No such proof has been offered. Those who are engaged in the prosecution of these actions do not bring themselves within the provision which authorizes them to do so. ' The question is properly raised on motion, inasmuch as these facts would not be such as .are called issuable. Clearly, it is not necessary to allege them in the complaint, and, I think, they would not constitute a defence if interposed by an answer. The answer would be (if the objection were so interposed), that the party who, by.the-face of-the complaint, brought the action, did not in fact bring it. Such an answer woxild involve only-the qnesiion whether the attorneys for the-plaintiffs were guilty of misconduct-, arid not any question pertaining'to the action. [439] Such questions are.disposed of by motion, and not by a trial at the circuit. It is not clear that, this was the ground upon which the case of Pomroy and others, Excise Commissioners of Cortland County a. Sperry (16 How. Pr., 211), was disposed of; but I have no hesitation in concurring with the result of that case for the reason here mentioned. The report is of a trial at the circuit, where no opinion was written by the judge, but the reporter has undertaken to state what was there decided, whether on rumor or newspaper statement, I cannot say. If the decision there was founded on any other reason than that here mentioned, I am unable to concur in it. The case in 4 Den., 269 (Thayer a. Lewis), is not in point here. The court say in that case (p. 273), “ It should be known who it is that prosecutes the suit to the end, that he may be held answerable as the real plaintiff in .the action. . The party who there prosecuted in the name of the overseers was required, by law, to give them security, against costs, in case of failure to recover j udgm ent. That was a question in which the overseers alone.had any interest. .The defendant there could look to the overseers or the town, if he succeeded in his defence; and it was no concern of his whether the overseers were indemnified by a suitable bond or not. Under this statute, the Legislature have required the party who turns informer and,claims to make use of the names of the Commissioners of Excise as plaintiffs, to produce reasonable proof that the accused party has been guilty. The provision here is different in character from the one referred to in 4 Den. The motions are granted, with $10 costs of motion, to be included in one .order only. From the order entered, the plaintiffs appealed to the court at general term. Br the Court.—Ingraham, P. J.—The motion in this case was to dismiss the complaint and direct the attorneys to pay the costs. The plaintiffs’.attorneys, if they.had any authority to bring the actions, could have shown.it on the motion, and [440] there -was no necessity for an alternative order that they should produce such authority or the actions should be dismissed. The difficulty with me on this appeal is as to the propriety of allowing the defendant to make the motion. In, Thayer a. Lewis (4 Den., 269), and other actions, a motion, similar in all respects, was made and denied, upon the express ground that ‘the defendants could not object that the suit was prosecuted by a third person; in the names of the overseers of the poor, without their consent; that the overseers alone had the right to complain that their names had been improperly used. And in the same case it was held that the overseers alone could object that they had not neglected to prosecute for ten days, before their names could be used by a third person. Bronson, Ch. L, says, “We think the defendant has nothing to do with the matter.” So far as the liability for costs would exist, the plaintiffs are alone interested. If, after notice to them of bringing such ac- , tions, they refuse to take measures to stop them, they will be liable for costs. In the case of Ninety-nine Plaintiffs a. Vanderbilt (1 Abbotts’ Pr., 163), the court required the attorney to exhibit his authority. That case was in conflict with the case in 4 Den., but in that case the court says: The defendant cannot insist upon the exercise of the power, by the court, to compel the production of the attorney’s authority, but must ask for the exercise of the discretion of the court, and submit to the terms which the court ■ might impose. The question, whether the defendant could make the motion, was not discussed. In most, if not all, of the cases cited, the motion was made by the plaintiff to stop the use of his name .as plaintiff. This power is not doubted. Nor do I doubt that the court has authority, if the facts submitted warrant it, to call on the plaintiffs’ attorney to show his authority, v by virtue of the general power which the court exercises over its • officers. But I do doubt whether the court should exercise such a power in behalf of a defendant whose only ground of making the motion was that no complaint had been made to the Board of Commissioners of Excise previous to bringing the action. If any injustice was to be done to the defendant by the prosecution, if any rights were to be violated, if any property was to be unjustly taken from him by such act of the attorney, [441] the court should interfere; but not otherwise, At any rate, under the decisions, no other order should be made than to stay the proceedings until the further order of the court; and he might, perhaps, ask for security for costs, showing to the court a state of facts that would prevent his collecting them from the plaintiffs. Clerke, J., concurred.