
    John W. Bellinger, as Overseer of the Poor of the Town of Kirkland, Resp’t, v. J. Allen Birge, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889.)
    
    1. Excise—Evidence—Release of cause of actios by overseer.
    An action was brought in the county court against defendant by one Boot, as overseer of the poor, to recover penalties for selling liquor in quantities less than five gallons, under Laws 1857, chap. 628, § 18. Boot died and this plaintiff, his successor by appointment, settted the action and gave a release of all causes of action in regard to sales of liquor, &c. In this, a subsequent action, defendant offered said release in evidence, but it was excluded on the ground that plaintiff had no power to settle, not having been substituted as a party. Held, error; that he might, and it was his duty to perform every act that his predecessor could or should have performed had he lived.
    2. Same—Power of overseer to settle.
    The overseer has power to settle or release such a cause of action for a violation of the statute, when the fairness of the settlement is not impeached, without the consent of the court in which the action is pending.
    (Mbrwie, J-, dissents.)
    Appeal from a judgment in favor of the plaintiff and against the defendant, for $150 damages and $110 costs, entered in Oneida county clerk’s office upon the verdict of a jury, and from an order denying a motion for a new trial made by the defendant on the minutes of the presiding justice.
    
      McMahon & Curtin, for app’lt; J. K McCabe, for resp’t.
   Martin, J.

This was an action to recover several penalties for selling strong or spirituous liquors in quantities less than five gallons at a time without having a license therefor. The action was based on the provisions of § 13 of chap. 628 of the Laws of 1857. It was brought in the name of John W. Bellinger, as overseer of the poor of the town of Kirkland, by A. G-. Hopkins and I. 0. Best, in pursuance of the provisions of § 30 of said act as amended by chap. 820 of the Laws of 1873.

On the trial the defendant offered in evidence a release under the hand and seal of said Bellinger, dated October 12, 1888, whereby, for a valuable consideration, he, as such overseer, agreed and stipulated to discontinue and settle a certain action then pending in the county court of Oneida county, in which one Rollin Root, as overseer of the poor of said town, was named as plaintiff, and the defendant in this action was defendant, and also settled and released all causes of action or rights of action which the said town or its overseer of the poor, as such, had, or claimed to have, against the defendant, for or on account of any and all alleged sales of liquor, wines, ales, or other strong and spirituous drinks without a license. This evidence was objected to “ as incompetent and immaterial, and that the overseer has no power.” The objections were sustained and the defendant duly excepted.

This exception presents at once the most important and difficult question involved on this appeal. The action in the county court was commenced in August, 1888, by Rollin Root, the then overseer of the poor of that town. He subsequently died. On September 15th of that year Bellinger was duly appointed as such overseer to fill the vacancy caused by such death When Bellinger assumed the duties of his office he found that action pending. It was afterwards settled by him and the release mentioned was given. That such settlement and release, if valid, was a defense to this action, is not denied. The contention of the persons prosecuting this action is, that the plaintiff had no power or authority to control or settle that action because he had not been substituted as plaintiff in the case, and that he had no power to settle the matters involved therein. The court so held.

Upon the death of Root and the appointment and qualification of Bellinger as such overseer, the latter succeeded to the rights, became invested with the powers, and burdened with the duties and responsibilities which had been possessed by and imposed upon the former, as well as to the subject matter of such suit as to the other matters pertaining to that office. We do not think the learned trial justice was correct in holding that Bellinger had no authority to act in or control over that action without being substituted as a party. We are of the opinion that that action and the subject matter thereof were subject to his direction and control, that he might, and that it was his duty to perform every act that his predecessor could or should have performed in regard to it if he had lived and continued in office. It might have been proper for Bellinger to have procured a substitution of himself as plaintiff if he had deemed it best to continue that action instead of settling it, but it does not seem that it was necessary. Farnham v. Benedict, 29 Hun, 44; Manchester v. Herrington, 10 N. Y., 164; Board of Excise v. Garlinghouse, 45 id., 249.

This brings us to the question of the power of an overseer of the poor to settle such an action and to discharge a person from the liability which he has incurred by reason of a violation of this statute. The respondent contends that such an action cannot be compounded without the consent of the court in which the action is pending. Several authorities are cited as sustaining that contention. We do not think they sustain the doctrine contended for. The cases cited were actions brought by private individuals in their own names where the public was interested in a portion of the recovery, and were based chiefly upon an English statute which expressly provided that in such an action the plaintiffs should not compound or agree with the offender without the order or consent of the court in which the action was pending. Substantially the same provision is made by § 1894 of the Code of Civil Procedure. Those cases are unlike the case at bar. In this case the action was brought by a public officer under the provisions of a statute which make it his duty to sue for and recover such penalties, and there is no statute or other authority to which our attention has been called that requires him to obtain the consent of the court before he can settle or discharge such a cause of action. Moreover, there is no evidence that this action was compounded, non constat, but the defendant paid the full amount of such penalties and costs.

By the statute under consideration the right of action for such penalties is vested in the overseer in the first instance. It is the obvious intent of the statute that such actions and causes of action shall be under the control and management of that officer, unless he shall improperly omit to perform his duty as such, and he must be deemed to possess all the powers necessary to a proper and efficient discharge of his duties in that behalf. Such powers as are necessary and not expressly given are to be implied.

While it may well be that a settlement of such an action by an overseer when proved to have been collusive, fraudulent or without consideration might be set aside, and that such a settlement would constitute no defense to a subsequent action brought to recover the same penalties, still we think it should ■ not be held that the settlement and release of such a cause of action, which is in all things proper and fair, is invalid. To uphold this judgment, we must hold that an overseer of the poor has no power to settle or release a cause of action for a violation of this statute even if the full penalty given by the statute was paid by the defendant.

In this case the fairness of the settlement is in no way impeached. Presumably it was based on a full and valuable consideration. If it was the duty of Bellinger, and he had power to settle this cause of action only on the payment of the full amount of the penalty incurred and costs, then the presumption is that he discharged that duty, and the burden of overcoming such presumption rested with the respondent. When the action is prosecuted by others in the name of the overseer, the overseer cannot control the action, but when prosecuted by himself he may, doubtless, control it, and even discharge the judgment when obtained, if such discharge be not in fraud of the rights of the people of his town. Record v. Messenger, 8 Hun, 285.

We have perhaps discussed the question in this case more fully than was necessary. What we intend to decide is, that the court erred in refusing to admit the release offered in evidence by the defendant. That the rejection of that evidence was error, we hold. For this error the judgment and order should be reversed.

Hardin, P. J.

When the defendant offered the discontinuance and release in evidence, it was objected to and rejected and an exception taken. If the paper had been received it would have furnished some evidence that defendant had paid to settle, or to satisfy penalties.

That would have required evidence from plaintiff to overcome the position of defendant that he had paid and satisfied.

The defendant was entitled to give the evidence that “ for a valuable consideration ” all actions were settled, all causes of actions accruing against defendant had been released; if the plaintiff could then have proved that the overseer had no authority to settle, or to release, he would have been entitled to give such proof.

In People ex rel. Hammond v. Leonard, 74 N. Y., 446, it was said by Church, Oh. J.: “ There may be cases also where a public officer suing for penalties may and ought to discontinue the actions, or in case of a doubtful result to compromise them. The diligence required by the statute does not mean a reckless prosecution regardless of consequences. The best diligence may be exercised in making haste slowly.”

If the court had taken the evidence offered by defendant, and then any evidence offered by plaintiff to reply, the question would have been presented as to whether the action of the overseer was valid and effectual, as well as discreet. The conclusion was erroneous. There should, therefore, be a reversal.

Merwin, J.

(dissenting). —The case presented does not, I think, authorize the assumption that any claim was made by defendant that the penalties proved had been paid. There was no plea of payment. The case shows that the new overseer saw the attorney of the parties desiring to have the cases prosecuted and declined to go on with the prosecution, on the ground that he deemed the evidence insufficient. The defendant then proposed to show that after that the overseer “ conferred with counsel about it and settled and satisfied all the cases, and released everything up to that date, October 12th.” That was the date of the release offered. There was no suggestion that the penalties were paid. Had such a suggestion been made, very likely the trial would have taken another course. At least another question would have been presented. So that I think the question for us to determine is whether an overseer has any power to release before judgment, without payment.

The statute, § 22 of chap. 628 of 1857, as amended by chap. 109 of 1878, provides that the penalties of the character here sued for “ shall be sued for, and recovered by and in the name of the overseers of the poor, * * * and paid over to the treasury of the county for the support of the poor.” No power to compromise or compound was given and none, I think, was intended.

Such a power would, in many cases, destroy the efficiency of the statute. The overseer was not the owner of the cause of action. The trial court simply held that the paper did not release the cause of action then pending. I think this rule was correct

Judgment and order reversed on the exceptions and a new trial granted, with costs to abide the event.  