
    Root, Overseer of Poor, ex rel. Fisher et al., v. Alexander.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1892.)
    Internal Be venue—Action eor Penalties bt Whom Brought.
    Laws 1857, c. 628, (as amended by Laws 1873, c. 820.) § 22, provides that penalties under the excise law shall be recovered by the town overseers of the poor. Section 30 provides that if the overseers “shall, for the period of 10 days after complaint to them that any person has incurred such penalty, * * * neglect or refuse to prosecute for such penalty, any other person may prosecute therefor in the name of the overseers. ” Held that, where the sole overseer of the poor in the town neglected to prosecute during his term, which expired more than 10 days after complaint was made, relator could prosecute in the name of the successor in office without again making complaint; the overseer of the poor being a quasi municipal corporation, having perpetual succession.
    Appeal from special term, Erie county.
    Action by Erastus F. Root, overseer of the poor of the town of Bolivar, on ■ the relation of Arthur G. Fisher and others, against Albert J. Alexander, for the recovery of a penalty for a violation of the internal revenue laws. From an order dismissing the complaint, relators appeal.
    Reversed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      W. Martin Jones, for appellants. C. H. Brovm, for respondent Erastus F. Root. Rufus Scoot, for respondent Albert J. Alexander.
   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 1857, c. 628, § 22, as amended by Laws 1873, c. 820, § 1, (Birdseye Ed. p. 1053, § 26.) It is further provided by section 30 of the •former enactment, as amended by section 2 of the latter, (Birdseye Ed. p. 1054, § 34,) that in case the overseers “shall, tor 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 excise law. The overseer neglected, for the period of 10 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 whicti 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 10 days thereafter) the relators 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 liad 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 $10 ■costs to the appellants of opposing the motion, and $10 costs and the disbursements of the appeal. So ordered in this and five other appeals submitted .herewith. All concur.  