Board of Commissioners of Excise v. Purdy

Ingbaham, P. J. The motion in this case was to dismiss the complaint and direct the attorneys to pay the costs. The [267] plaintiff’s attorneys, if they had any authority to bring the actions, could have shown it on the motion, and 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 right of the defendant to make the motion. In Thayer v. Lewis and others (4 Denio, 269) 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 name 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, Gh. J. 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 actions, they refuse to take measures to stop them, they will be liable for costs. In the cases of The Ninety-nine Plaintiffs v. Vanderbilt, (1 Abb. 193,) the court required the attorney to exhibit his authority. That case was in conflict with the case in 4 Denio, but the court say 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 may impose. The question whether the defendant could make the motion, was not discussed. In most, if not all 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 plaintiff’s attorney to show his authority, by virtue of the general power which the court exercises over its officers ; but I do doubt whether the court should exercise such [268] a power in behalf of a defendant whose only ground of making the motion is, that no complaint has 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, 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 the defendant might perhaps ask for security for costs,, on showing to the court a state of facts that would prevent his collecting them of the plaintiff. Cleekb, J. concurred.