
    THE BOARD OF COMMISSIONERS OF EXCISE, OF, IN AND FOR THE CITY OF YONKERS, Appellant, v. DAVID GLENNON, Respondent.
    
      Violations of the excise law in the city of TonJcers — by whom actions to recover the penalties incurred by, are to be brought.
    
    Actions to recover penalties incurred by a violation of the excise law within the city of Yonkers, must, under chapter 109 of 1878, be brought by the Commissioner of Charities thereof, and not by the Board of Commissioners of Excise.
    Appeal from an order of the City Court of Yonkers, setting aside the verdict of a jury and granting a new trial.
    The action was brought by the Board of Excise of the city of Yonkers, to recover the penalty incurred by the defendant in selling liquor without a license.
    
      
      Salph F. Prime, for the appellant.
    
      James F. P. Cra/ne, for the respondent.
   Barnard, P. J.:

The Legislature, in 1873 (Laws of 1873, ch. 35), remodeled and amended the charter of the city of Yonkers. By title 11 of this act, section 3, it was provided that there should be a Commissioner of Charities appointed, and that “ all laws now in force, not inconsistent with the provisions of this act, applicable to overseers of the poor in towns, shall apply to the Commissioner of Charities appointed pursuant to this title.” In 1875 (Laws of 1875, ch. 578), the Legislature amended this section by adding to it the following words: “And such Commissioner of Charities shall have and possess all powers which overseers of the poor of towns now have, or which may be hereafter conferred upon them by law.” In 1878 (Laws of 1878, ch. 109), the Legislature enacted that actions for certain penalties incurred under the excise laws should be sued for by and in the name of the overseer of the town or city in which the alleged penalty was incurred, “ except in such towns or cities as have no overseers of the poor, in which case said penalties shall be sued for, and recovered* by and in the name of the Board of Commissioners of Excise of the town or city aforesaid, and paid over to the treasury of the county for the support of the poor of the town or city in which such penalty was incurred; except that in counties where there is no distinction between1 town and county poor, then for the poor of such county. . . .” By Laws of 1878, chapter 119, amending the act of 1873, incorporating the city of Yonkers, “ all. penalties ... in favor of the city or any of its officers, departments, or boards of commissioners . . . when collected, shall be paid into the city treasury.”

‘ Must the Commissioner of Charities sue for the penalty in question, or the Board of Excise ? The letter of the law is in favor of the Commissioners of Excise. There is'no overseer of the poor in Yonkers by that name. There is an officer who has all his powers, and is subject to all his duties. The penalty belongs to the city treasury. This is very clear, because the Legislature gave it after tbe passage of the law directing its payment in tbe case of other towns and cities to the county treasury. The Commissioner of Charities seems to be an overseer of the poor of Yonkers, within the spirit of chapter 109, Laws of 1878. ' The judgment should therefore be affirmed, with costs.

Pratt, J., concurred; Gilbert, J., dissented.

Order granting new trial affirmed, with costs.  