
    Bellinger, Overseer of the Poor, v. Birge.
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    1. Intoxicating Liquors—Illegal Sales—Penalties—Releases.
    In an action for the penalty imposed by Laws N. Y. 1857, c. 628, § 13, (3 Rev. St. N. Y., 8th Ed., p. 2230,) for selling liquors without a license, brought by plaintiffs in the name of the overseer of the poor, under section 30, as amended by Laws N. Y. 1873, c. 820, (3 Rev. St. N. Y., 8th Ed., p. 2234,) which provides that in case of the failure of the overseer, whose duty it is prosecute such action, under section 22 of the act, (Rev. St. N. Y., 8th Ed., p. 2233,) to do so, any other person may prosecute it in the name of the overseers of the poor, a release executed by the overseer to defendant of all such causes of action against him is admissible in evidence, where it does not appear that such release was not based on a full and valuable consideration. Merwin, J., dissenting.
    2. Town Okbtcers—Actions.
    On the death of an overseer of the poor pending an action brought by him as such, his duly appointed and qualified successor has the same control over such action as he would have had, without being substituted as plaintiff.
    Appeal from circuit court, Oneida county.
    Action in the name of John W. Bellinger, overseer of the poor of the town of Kirkland, against J. Allen Birge, for penalty for selling intoxicating liquor without license. Laws 3ST. Y. 1857, c. 628, § 13, provides a penalty of $50 for sales of spirituous liquors in quantities less than five gallons, without a license. Section 22 provides that the action for such penalty shall be brought in the name of the overseers of the poor of the town in which it is incurred. Section 30 provides that on their failure to bring the action within 10 days-after complaint to them, and reasonable proof of its truth, any other person may prosecute the action in the overseers’ names. 3 Rev. St. 2T. Y. pp. 2230, 2233, 2234. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      McMahon <£• Curtin, for appellant. J. E. McCabe, for respondent.
   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 section 13, c. 628, Laws 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 section 30 of said act, as amended by chapter 820, Laws 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 discontinueand settlea certain action then pending in the county court of Oneida county, in which one Rollin Boot, 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 Bollin Boot.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 after-wards 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 byandimposed 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 v. Garlinghouse, 45 N. Y. 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 section 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 makes 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 onlyon 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 notion 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. The only question 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. Judgment and order reversed on the ■exceptions, and a new trial granted, with costs to abide the event.

Hardin, P. J., concurred. For opinion, see 8 N. Y. Supp. 174.

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 (section 22, c. 628 of 1857, as amended by chapter 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-ruling was correct.  