
    Jacob C. Palmer, as Supervisor of the Town of Hadley, Appellant, v. Smith M. Roods and Orange Kathan, Respondents, Impleaded with Benjamin S. Jenkins.
    Third Department,
    November 14, 1906.
    Party — county .treasurer may not sue on undertaking given by a supervisor under section 60 of the Town Law — pleading — capacity of plaintiff to sue not raised by demurrer for failure to state cause of action.
    A county treasurer may not, bring- action on the official undertaking of a supervisor given under section 60 of the Town Law to recover for a failure to .pay over moneys for the local school fund, which came into the supervisor’s hands. A bond given Under such section of the Town Law differs from the bond of the supervisor given under section 17 of title 3 of the Consolidated School .Law, on. which latter bond suit must be brought by ■ the county treasurer.
    A demurrer to a complaint on the ground that the plaintiff has not the legal capacity to sue must point opt specifically the particular defect relied on, and such' objection is not.raised by a demurrer on the ground that the complaint does hot state a cause of action. '
    
    Hence, a contention that an action should have been brought by the town instead of by the supervisor cannot be raised on the demurrer for failure to state a cause of action. •
    Appeal by the plaintiff, Jacob 0.. Palmer, as supervisor, etc,, from an interlocutory judgment of the Supreme Court in favor of the defendants Roods and Kathan, entered in the office of tire cleric of the county of Saratoga on the 23d day of March, 1906, upon the decision of the court, rendered after a trial' at the Saratoga Special Term, sustaining the said defendants’ demurrer to' the complaint.
    
      J. A. Kellogg and T. W. McArthur, for the appellant.
    
      George R. Salisbury, for the respondents.
   Cochrane, J. :

The action is on the official undertaking of the defendant Poods as former supervisor of the town of Hadley. The other defendants are the sureties on such undertaking. The alleged breach of the undertaking is among other things-that the supervisor did-not pay over and account for the local school fund which came into his hands.

The defendants demurred on the following grounds: “ First, that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue in that the statute governing such cases gives to the supervisor no right to bring this action and specifically" states that the action should be brought by the county treasurer of the county. Second, that the complaint does not state facts sufficient to constitute a cause of action.”

The demurrer cannot be sustained on the ground first stated. That ground of demurrer is based on section 17 of title 2 of the Consolidated School Law (Laws of 1894, chap. 556), which provides for a bond to'be given by a supervisor covering all school moneys that may come into his hands from any source and that such bond shall be sued by the county treasurer. The obligation in question, however', was not the bond provided for by the last-mentioned statute, but was the undertaking required by section 60 of the Town Law (Laws of 1890, chap. 569), which covers all moneys and property including the local school fund, if any,” belonging to the town and coming into the hands of the supervisor. The defendants executed an undertaking under the Town Law, and not a bond under the Consolidated School Law. There is no claim that the county treasurer could sue this undertaking given under the Town Law.

The second ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. This attack on the complaint is disposed off adversely to the defendants by the cases of Town of Hadley v. Garner (116 App. Div. 68) and Town of Hadley v. Mosher (Id. 910), both decided by this court at the present term, the latter case without opinion.

It may be that the action should have been instituted in the name of the town rather than by the supervisor: The demurrer, however, does not raise that question. The point is that the plaintiff has no legal capacity to sue on this obligation. Section 490 of the Code of Civil Procedure requires that the demurrer must distinctly specify the objections to the complaint, and that the objection that the plaintiff has not the legal capacity to sue must point out specifically the particular defect relied upon. This demurrer fails to . point out that the action should have been instituted by the town of Hadley. •

Nor is the point that the action is improperly brought by the supervisor raised by the attack oil the complaint for insufficiency. (Perkins v. Stimmel, 114 N. Y. 359, 369; Varnum v. Taylor, 59 Hun, 554; Secor v. Pendleton, 47 id. 281; O'Reilly, Skelly & Fogarty Co. v. Greene, 18 Misc. Rep. 423; Town of Pierrepont v. Lovelass, 4 Hun, 696.) The last case was reversed (72 N. Y. 211), but oh another point, and was cited with approval in 114 New York, 369 (supra) on the point that the objection of incapacity of the plaintiff to maintain the action could not he raised by _ a demurrer taken on the ground that the complaint does not state facts constituting a cause of action.

The interlocutory judgment must be reversed, with costs, and the demurrer overruled, with costs, with leave to the defendants to plead'over on the payment of such costs.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with usual leave to defendants to plead over on payment of such costs.  