Town of Chautauqua v. Gifford

Taloott, J.: This comes to this court on exception’s taken at the Chautauqua Circuit and directed to be heard at the General Term in the first instance. The action was brought to enforce a supposed liability of the defendants, who are bankers, for certain moneys claimed to have been received by the supervisor of the town from the collector of taxes belonging to the town and deposited' or left with the defendants in 1873. The main question in the case is, whether the action can be maintained in the name of the town as plaintiff, or must be brought by the present supervisor. It was held in Hathaway as Supervisor of the Town of Solon v. The Town of Homer (5 Lans., 267), that where there is a liability to the town for moneys, it can only be enforced by an action in the name of the supervisor. This was held to- be the effect of certain provisions of the Revised Statutes, viz.: 1. Revised Statutes, 356, section 1, which provides that when any controversy or cause of action shall exist between towns of this State or between any town and an individual or corporation, proceedings shall be had as in suits of a similar kind between individuals; and section 2 of the same stat [154] ute, which declares that in all such suits and proceedings the town shall sue or be sued by its name, except when town officers shall be authorized by law to sue in their name of office for the benefit of the town. Also, 2 Revised Statutes, 473, sections 92 and 93, which authorize, among other things, actions to be brought in the names of town supervisors upon any contract, lawfully made with them or their predecessors, to enforce any liability or any duty enjoined by law to such officers or the body which they represent. The case of Hathaway v. The Town of Homer was reversed by the Commission of Appeals (54 N. Y., 655), but upon other points, and no intimation was made that the opinion of the Supreme Court was erroneous in holding that the action must be brought in the name of the supervisor of the town. The same point was also held at the General Term of the third department in January, 1873, in the case of The Town of Lewis v. Marshall, where the opinion of the court was delivered by Justice Miller, who states that “the action was improperly brought in the name of the town of Lewis, and if maintainable at all, it must be in the name of the supervisor of the town, who alone is authorized to sue in such a case,” and this was the sole ground of the decision. On appeal to the Court of Appeals the decision of the General Term was affirmed, and the opinion of Miller, J., in the court below adopted. (56 N. Y., 663.) The doctrine of the case of The Town of Lewis v. Marshall was as to this point again asserted by the Court of Appeals, in The Town of Guilford v. Cooley (58 N. Y., 121). The cases above referred to were all actions brought since the Code of Procedure went into effect, and since the provision that every action must be brought in the name of the real party in interest, except as otherwise provided in section 113. Section 113 provides that a person expressly authorized by statute may sue without joining with him the person for whose benefit the suit is prosecuted. If the views herein expressed are correct, they are fatal to the maintenance of the action in its present form; so that it is not necessary to consider the point that the suit was brought without due authority, nor of any avail to order a new [155] trial. The complaint should have been dismissed, and such order should be made by this court. New trial denied, and complaint dismissed with costs. Present — MulliN, P. J., SMITH and Taloott, JJ. Complaint dismissed, with costs.