Board of Trustees v. Acker

Scrugham, Justice. The constitution gives to all corporations the right to sue, but the manner in which that right is to be exercised is left for legislative enactment; and there is no constitutional prohibition against a provision that it shall be in the name of one or more of the officers of the corporation. The plaintiffs are not a corporation, but the trustees composing the board are officers of the Brooklyn Eastern District Eire Department, which was duly incorporated by the act of April 7th, 1857, and which is the legal owner of the fund for the use of which all recoveries are appropriated in actions for fines, forfeitures or penalties under the “Act to establish fire limits and for the more effectual prevention of fires in the eastern district of the city of Brooklyn,” and therefore it is the real party in interest for whose immediate benefit such actions are prosecuted. In providing that they shall be brought by the board of trustees, in their own name, the legislature only designates the officers of the corporation who are to sue in its behalf. The difficulty in this case does not arise from any want of power in these officers to sue, but from the fact that the action does not appear to be brought by the officers, but by the office. It has always been required that when the suit is by an officer for the benefit of the body he represents, it shall be brought in the proper name of the individual, with the addition of his name of office. (Supervisor of Galway agt. Stimson, 4 Hill, 136 ; Commissioner of Highways of Cortland-ville agt. Peck, 5 Hill, 215 ; The Agent of the State Prison at Mount Pleasant agt. Rikeman and Hubbell, 1 Denio, 279.) There is nothing in the act of 1860 indicating any intention of the legislature to establish a different rule in the •actions which it authorizes ; and the importance of requir [270] ing such actions to be brought in the individual names of the trustees, with the addition of their name of office, is apparent from the fact that otherwise, should they bring an unfounded action, no judgment for the defendant’s costs could be collected, as the board of trustees have no property. There is, on the other- hand, no great hardship in requiring that the action should be brought in such a manner as to make the individual trustees liable for costs in case they fail to establish a cause of action. The suit is for a penalty which they are permitted to collect, but the enforcement of which is not incumbent upon -them; they bring the action, therefore, voluntarily, and if they fail in it, it is no more than just that they should answer for the defendant’s costs, and look for reimbursement to the corporation in whose interest they sued. The county judge erred in denying the motion to dismiss the complaint, and the judgment should be reversed, and judgment ordered dismissing the complaint. Justices Brown and Lott concurred in the opinion, but thought the decision should be that “ the judgment be reversed .and a new trial ordered—costs to abide the event,” which was entered accordingly.