People v. Groat

Learned, P. J. : The want of a seal did not prevent a recovery. (Kelly v. McCormick, 28 N. Y., 318; Shaw v. Tobias, 3 N. Y. 190.) The case of Tiffany v. Lord (65 N. Y., 310), cited by the defendant, is not in point, because that was not an action by the person whose property had been taken by virtue of the attachment, and who might, therefore, insist on any defect in the papers. The people are the obligees in the instrument; therefore they are the proper plaintiffs, unless there is some statutory law which requires the action to be brought in the name of some other person. The bond was taken under section 7 of chapter 628 of Laws of 1857. Section 24 of the same chapter makes it the duty of the commissioners of excise, &c., to prosecute the bond, in case of violation, “ and recover the penalty therefor.” Section '22, as, [166] amended by chapter 820 of Laws of 1873, directs that the penalties imposed by the act, except those penalties provided for in certain sections (not including the 7th), shall be sued for and recovered in the name of certain officers specified. Now we may say, first, that this is not an action for a penalty imposed. The amount in which an obligor is bound is called the penalty of the bond. But when section 22 speaks of penalties imposed, it refers to fines and forfeitures. This is made plain (if there could be a doubt) by reference to the excepted sections, viz.,' 8, 15, and 19. Section 22, then, does not determine in whose name an action on this bond must be brought. Next, it is urged, and this is the view taken by the learned justice who granted a new trial, that the people were the trustees of an express trust, and, therefore, that the action is properly brought in their name. It is true that in People v. Norton (9 N. Y., 179), where a bond had been given to the people by a trustee of certain •children, it was held that an action thereon might be maintained in the name of the people as trustees for the benefit of those children. That case is explained in Dayton v. Johnson (69 N. Y., 419). Without criticising it, we may notice that, in that case, the children •could be said to be oestuis que trusts, for whose benefit the people could be said to hold the bond given by the trustee for the faithful performance of his duty. But in the present case, who are the oestuis que trust for whom the people can be said to hold this bond ? There are none. Nor is there property in which any person has a beneficial interest. There cannot be a trust, unless there be some beneficiary. Furthermore, a trust always implies the existence of property over which it is to be exercised. In this case, therefore, the people are not trastees of an express trust. But as the people are obligees in the bond, there is no difficulty in their maintaining the action simply as obligees, unless section 24, above cited, prevents. The language is, that it shall be the duty of, &c., “ to prosecute the same and recover the penalty therefor.” The complaint in this case avers that the action is prosecuted by the trustees of the village (officers mentioned in that section). We have, therefore, only the question whether the section, which makes it their duty to prosecute and recover, necessarily means that they [167] must prosecute and recover in their own names. There is no need -of giving this construction. It is enough to understand the section as authorizing the officers therein named to conduct and control the action, and to recover the penalty ; and for that purpose to bring the action in the name of the obligee, the people. The section -does not expressly require them to sue in their own names. For these reasons, wo think the order granting a new trial should he affirmed, with costs. Present — Learned, P. J., and Hookes, J.; Martin, J., taking no part. Order affirmed, with costs.