Board of Health v. Valentine

Pratt, J. If the defendant intended to challenge the right of the board to sue in its corporate name, he should have demurred, but, waiving that, we think the action was well brought. The principal object of having a proper party'plaintiff is to prevent the possibility of the defendant having to answer twice for the same cause of action. The statute under which this action was instituted provides that the penalty “ may be sued for and recovered with costs by said board in the name of such board, in any court having competent jurisdiction.” It seems too plain for argument that this action was well brought in the name of the board, without naming the individual members thereof Board v. Casey, 3 N. Y. Supp. 399. The case Gould v. City of Rochester, 12 N. E. Rep. 275, is not an authority against the proposition, as the question was not raised nor passed upon; and, besides, that action was brought under a different statute, to-wit, chapter 324, Laws 1850, and chapter 351, Laws 1882. It ought to be enough to cite the case of Ahern v. Steele, 115 N. Y. 209, 22 N. E. Rep. 193, to show that in such a case as this the landlord is responsible for maintaining the nuisance. The principle that the owner of the premises is liable by reason of defective construction and dangerods condition of premises, notwithstanding the premises are at the time in possession of a tenant, if the defect existed when the owner leased the property, is very old and well settled. Moody v. Mayor, 43 Barb. 282; Cheetham v. Hampson, 4 Term R. 318; Rosewell v. Prior, 2 Salk. 460, fully reported in 1 Ld. Raym. 392,713. In the case last cited it was held that receiving rent for a nuisance was equivalent to maintaining it. See, also, Moak, Underh. Torts, 253-255; Wood, Nuis. 76-80; Owings v. Jones, 9 Md. 108. The nuisance complained of came under the general sanitary regulations, and hence it was not necessary to serve the order upon the occupants and owner of the premises, under section 3, subd. 6, c. 270, Laws 1885. Judgment reversed, and new trial ordered, costs to abide event. All concur.