
    Erastus F. Root, Overseer, Resp’t, ex rel. Arthur C. Fisher et al., App’lts, v. Albert J. Alexander, Resp’t.
    
      (Supreme Court, General Term, Fifth, Department,
    
    
      Filed April 13, 1892.)
    
    .Excise—Actions in name oe overseer.
    Where an overseer of the poor refuses or neglects to prosecute for a penalty under the excise law upon proper complaint and proofs, and his term expires, an action may be maintained in the name of his successor without a renewed service of the complaint and proofs upon the overseer in office at the time the action was commenced.
    
      Appeal by the relators from an order of the Erie special term, dismissing the complaint and discontinuing the action.
    
      W. Martin Jones, for relators, app’lts; G H. Brown, for overseer, resp’t; Rufus Scoot, for def’t, resp’t
   Dwight, P. J.

The statute relating to penalties under the excise law provides that they shall be sued for and recovered by the overseers of the poor of towns. Laws of 1857, chap. 628, § 22, as amended by Laws of 1873, chap. 820, § 1 (Birdseye, 1053, § 26). It is further provided by § 30 of the former enactment as amended by § 2 of the latter (Birdseye, 1054, § 34), that in case the overseers “shall for the period of ten days after complaint to them that any person has incurred such penalty, together with reasonable proof of the same, neglect or refuse to prosecute for .such- penalty, any other person may prosecute therefor in the name of the overseers of the poor of the town.”

February 20, 1891, Mark A. Furnald was sole overseer of the poor of the town of Bolivar, and on that day the relators served upon him as such the requisite complaint and proof in writing that the defendant had incurred-penalties for violations of the ex-' cise law. The overseer neglected for the period of ten days thereafter-to bring an action for the recovery of such penalties, and on the 5th day of March his term of office expired, and he was succeeded by Erastus F. Root. On the 20th'day of March the relators commenced this action for the recovery of the same penalties in the name of the new overseer of the poor.- The single question on the merits presented by this appeal is whether under the statute the action can be maintained without a renewed service of the complaint and proof upon the overseer in office at the time the action was commenced. The court at special term held otherwise, and on that ground, on motion of the overseer, made the order from which the appeal is taken. We think the order was erroneous.

The overseer of the poor is a quasi municipal corporation having perpetual succession. The incumbency of the office changes but the office remains the same. All rights acquired by others under .one incumbency of the office, continue under those which succeed. By making the complaint to the overseer in February, no action having been commenced by him within ten days thereafter, the relator acquired the right to bring the action in the name of the overseer in March. It was the overseer of the poor to whom the complaint was required to be made, and it was the overseer of the poor in whose name the action was required to be commenced; not necessarily the same overseer in both cases, but, in each case, the overseer in office at the time. The statute, with this construction, imposes no personal liability upon one incumbent of the office for the neglect or default of his predecessor. The new overseer is only the nominal plaintiff, and in no event can be made liable for the costs of the action. He is even relieved from the responsibility for the conduct of the action which he would have assumed had he brought it in his own name as overseer, on a complaint made to him, and he bears no other relation thereto than he would have done had he declined to bring the action on a ■complaint so made.

The question seems not to have been adjudicated in any reported case, but upon the principles suggested above we think the motion should have been denied. The order appealed from should be reversed and the motion denied, with ten dollars costs to the appellants of opposing the motion, and ten dollars costs and the disbursements of the appeal.

So ordered in this and five other appeals submitted therewith.

Macomber and Lewis, JJ., concur.  