
    ROOT v. ALEXANDER.
    
      N. Y. Supreme Court, General Term, Fifth Department;
    
    April, 1892.
    
      Excise ; action in the name of the overseer of the poor.]. The right to sue for a penalty for the violation of the excise laws in the name of the overseer of the poor, arising from the neglect or refusal of the overseer to prosecute for such penalty upon complaint and reasonable proof, continues .notwithstanding the expiration of the overseer’s term of office, andan action may be maintained in the name of his successor without renewed service of complaint and proof.
    
    Appeal from an order of the Special Term of the-Supreme Court, Erie County, dismissing complaint and discontinuing the action.
    Arthur C. Fisher, in the name of the overseer of the-poor, Erastus F. Root, and others, prosecuted Albert Y. Alexander for a penalty for an alleged violation of the excise laws.
    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, § I'; Birdseye, 1053, § 26). It is further provided by section 30 of the former enactment as amended by section 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 ór 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 excise 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.
    
      W. Martin Jones, for appellants, the relators.
    
      C. H. Brown, for respondent, the overseer bf the poor.
    
      Rufus Scott, for respondent, the defendant.
    
      
       The same principle would apply it seems, to leave granted to a trustee, executor, administrator, receiver, guardian, committee or assignee for benefit of creditor, so that such leave would enure to the benefit of his successor in administration.
      Whether it would apply to the case of the necessary request by a stockholder to the trustees or directors of a corporation to sue, as. a. preliminary to a suit by the stockholder, is more doubtful. See Greaves v. Gouge, 69 N. Y. 154; Hawes v. Oakland, 104 U. S. 450.
      Whether a change in the incumbency of the office of sheriff after delivery of an attachment to him but before actual seizure or levy, or actual collection of money thereon would affect the question which officer should sue to reach equitable assets under Code Civ. Pro., see the provisions of sections 182-186 ; and section 786.
    
   Dwight, P. J. (after stating the facts).

The single question on the merits presented by this appeal is whether under thd 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 by 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., concurred.  