
    THE COMMISSIONERS OF EXCISE FOR THE CITY AND COUNTY OF NEW YORK a. PURDY.
    
      Supreme Court, First District;
    
    
      At Chambers, December, 1861.
    
      Again, General Term, March, 1862.
    Action foe Penalty.—Pboseoution in the name’ of Püblio Officebs:—Attoeney’s Authobity.
    On motion to dismiss an action as commenced without' authority, allegations upon information and belief in the moving affidavits as to the want of authority, not contradicted'or explained, are to b'e taken as true.
    The objection that an action is commenced without authority should-be taken on motion and not by answer.
    "Where a statute giving a. penalty to be recovered by certain officers, provides that if they do not sue on notice to them of the offence, a private person may recover it in their names;—a defendant, sued for such penalty, is not entitled to move to dismiss the action on the mere ground that it was brought without authority from the nominal plaintiffs, and without notice to them.
    The defendants may, however, move for security for costs, and a stay of proceedings until security is given.
    Motions to dismiss" sixty-six different actions, with costs to be paid by plaintiffs’ attorneys, on the ground -that they were commenced without authority.
    These actions were brought to recover in each the penalty of $50 imposed by Laws of 1857, ch. 628, for the sale'of spirituous .liquors in quantities of less than five gallons in' contravention of that act. The defendants moved in each of the actions upon affidavits' as follows:
    “James M. Smith, the attorney for the above-named defendant, being duly sworn, says: That he has been informed and believes, that no complaint that any of the provisions of the act, entitled ‘ An Act to suppress Intemperance, and to regulate the sale of Intoxicating Liquors,’ passed April 16, 1857, had been violated by the defendant had been made to said Board of Excise Commissioners ten days previous to the commencement of said action as required by the said act, or at any other time; and that the said Board of Commissioners have not authorized the commencement of said action; and this deponent further says, that he received said information from Noah A. Childs, one of said Board of Excise.”
    “George H. Stout, of the city of New York, being duly sworn, says: That he is the clerk pro tern, of the Board of Commissioners of Excise for the county of New York, and has charge of the books of said Commissioners, and is conversant with the affairs of said Board of Commissioners. That no complaint that any of the provisions of the act, entitled1 An Act to suppress Intemperance, and to regulate the sale of Intoxicating Liquors,’ passed April 16, 1857, had been violated by the defendant had been made to said Board of Commissioners ten days previous to the commencement of the said action as required by the said act; and that the Board of Commissioners of Excise have not authorized the commencement of said action as he is informed and verily believes.”
    
      James M. Smith, for the motion.
    
      Sickles & Cushing, opposed.
    —I. Defendants have no right to make this motion. They have a known and responsible plaintiff and attorneys, and it is only for them to defend against the charge made in the complaint. It does not lie with the defendants to object, by motion or otherwise, that the suit is prosecuted by a third person in the name of the Board of Commissioners, or Overseers of the Poor, without their consent. (Thayer a. Lewis, 4 Den., 269 ; Pomroy a. Sperry, 16 How. Pr., 211, affirming manuscript opinion ; Laws of 1845, ch. 300, § 7 ; Jackson a. Stewart, 6 Johns., 34 ; American Ins. Co. a. Oakley, 9 
      Paige, 496 ; Denton a. Noyes, 6 Johns., 296 ; Adams a. Gilbert, 9 Wend., 499.)
    II. If the defendant has the right to interfere it is not an absolute one. It rests in the discretion of the court, and is to be exercised only in extraordinary cases, and where the defendant, could not be protected otherwise. The only case in our courts is the case of 99 plaintiffs a. Vanderbilt (1 Abbotts' Pr., 93), and the peculiarities of that case led the court to depart' from the usual rule. There is nothing in this case calling for the intervention of the court. The plaintiffs and their attorneys are well-known residents of Hew York, and their responsibility is unquestioned. It is of no earthly consequence to the defendant whether the Commissioners of Excise bring the suits, or they are brought by a third person under the thirtieth section of the act. In either case the suit is a bar to a future prosecution. If successful in his defence he has a responsible party to look to for his costs, for there is no question but that the plaintiff is in all cases responsible to the defendant for the acts of an attorney who assumes to act for him, especially where the Suit is carried on with his knowledge. If he cannot succeed in his defence, but is guilty of the violation, he has but little reason to complain that proper papers weré not served on the Commissioners.
    III. The affidavits of defendant are only on information and belief. This is not sufficient to rebut the presumption of law, that authority of an attorney is to be presumed from his- appearing on the record (Hoffman, J., 1 Abbotts' Pr., 201), or to call on the plaintiff to offer rebutting'evidence. So this court held, Hr. Justice Ingraham presiding, in case prior to this, and in a much stronger case for the defendant.
    IY. Were the affidavits of defendant sufficient to call on the attorneys who brought this suit for some denial or explanation, the order of the court should have been that the attorneys make such denial or explanation, with a stay until done. The court (1 Abbotts' Pr., 196) say, “ the defendant cannot insist on its exercise as an absolute right. He cannot insist that the action be dismissed because the power is not produced, nor that it be stayed forever unless it be producedand page 197, “He should submit to such terms as justice will require.” The presumption arising from the attorneys not offering any denial is certainly not stronger than the presumption that the decision of this case would be in accordance with the former decision.
    Y. As to the costs of the suit, there is no evidence of any suit pending, what its present- state was, who were the attorneys, or that they had any notice of the proceedings to dishonor them and to compel them to pay a very large sum of money. There is no pretence of misconduct or bad faith on their part. All that is pretended out of order is, first, Either that the plaintiffs as a Board did not direct- the suit, no matter what the individual Commissioners may have said or done; or, second, That the party complaining under the thirtieth section did not give ten days’ notice. These are not the faults of the attorneys. It is not usual to compel the attorneys to pay the costs when the plaintiff for any reason fails to make out his case. In fact no case can be found in which the attorneys have been required to pay costs, except when they have been guilty of bad faith amounting "to a fraud upon the court and upon the opposite party, and the costs are presumedly imposed not only as an indemnity but to punish the offender.
   Leonard, J.

—Motions are made in this and several other similar actions, for an order dismissing them, with costs to be paid by the plaintiffs’ attorneys, on the ground that they are commenced without any authority or lawful right so to do.

They are commenced for alleged violations of the “ Act to suppress Intemperance, and to regulate the sale of Intoxicating Liquors,” passed April 16, 1857 (2 Laws of 1857, ch. 628), to recover a penalty of $50, in each case, for the sale of spirituous liquors or wines, in quantities less than five gallons, without a license.

It is proven by affidavit, on the part of the defendants, that no complaint had been made to the Excise Commissioners, before the commencement of these actions, that the defendants had violated the said statute; and that the Commissioners had not authorized the commencement thereof.

These facts are proved upon information and belief only, but are not denied on the part of the plaintiffs, or by the attorneys who bring the actions.

The proof was sufficient to call on the attorneys who instituted the actions for some denial or explanation; and as they have not'thought proper to do so, it must be assumed that none pan be made, and that the statements of the affidavits are true.

By section 22 of the act referred to, it is directed that the penalties for which these actions are prosecuted, shall be sued for and recovered in the name of the 'Board of Commissioners of Excise.

By section 30 it is further provided, that if the Commissioners shall neglect to prosecute for any penalty provided by the act, for the period of ten days after complaint to them that any provision of the act has been violated, accompanied with reasonable proof of the same, any other person may prosecute' therefor in the name of the Commissioners.

It is quite plain that the Legislature have here imposed a-condition with which private persons must comply- before they are authorized to prosecute for the recovery of any'penalty, or to use the official name of the Commissioners as-plaintiffs.

The condition is imposed not only for the safety of the Commissioners and the public, but also-to prevent - citizens from being vexed by informers and speculators without .probable cause.

The Commissioners do not prosecute these actions; they are brought by some one else using their name.

Such party should have proved on this motion that the Commissioners had neglected to take action themselves for ten days after complaint made to them "against these defendants respectively, for violation of The law, and that they had produced before them reasonable proof of the truth of the complaint.

■ No such proof has been offered. Those who are engaged in the prosecution of these actions do not bring themselves within the provision which authorizes them to do so.

' The question is properly raised on motion, inasmuch as these facts would not be such as .are called issuable. Clearly, it is not necessary to allege them in the complaint, and, I think, they would not constitute a defence if interposed by an answer. The answer would be (if the objection were so interposed), that the party who, by.the-face of-the complaint, brought the action, did not in fact bring it. Such an answer woxild involve only-the qnesiion whether the attorneys for the-plaintiffs were guilty of misconduct-, arid not any question pertaining'to the action.

Such questions are.disposed of by motion, and not by a trial at the circuit.

It is not clear that, this was the ground upon which the case of Pomroy and others, Excise Commissioners of Cortland County a. Sperry (16 How. Pr., 211), was disposed of; but I have no hesitation in concurring with the result of that case for the reason here mentioned. The report is of a trial at the circuit, where no opinion was written by the judge, but the reporter has undertaken to state what was there decided, whether on rumor or newspaper statement, I cannot say.

If the decision there was founded on any other reason than that here mentioned, I am unable to concur in it.

The case in 4 Den., 269 (Thayer a. Lewis), is not in point here.

The court say in that case (p. 273), It should be known who it is that prosecutes the suit to the end, that he may be held answerable as the real plaintiff in .the action. . The party who there prosecuted in the name of the overseers was required, by law, to give them security, against costs, in case of failure to recover j udgm ent.

That was a question in which the overseers alone.had any interest. .The defendant there could look to the overseers or the town, if he succeeded in his defence; and it was no concern of his whether the overseers were indemnified by a suitable bond or not.

Under this statute, the Legislature have required the party who turns informer and,claims to make use of the names of the Commissioners of Excise as plaintiffs, to produce reasonable proof that the accused party has been guilty. The provision here is different in character from the one referred to in 4 Den.

The motions are granted, with $10 costs of motion, to be included in one .order only.

From the order entered, the plaintiffs appealed to the court at general term.

Br the Court.—Ingraham, P. J.—The motion in this case was to dismiss the complaint and direct the attorneys to pay the costs. The plaintiffs’.attorneys, if they.had any authority to bring the actions, could have shown.it on the motion, and there -was no necessity for an alternative order that they should produce such authority or the actions should be dismissed.

The difficulty with me on this appeal is as to the propriety of allowing the defendant to make the motion. In, Thayer a. Lewis (4 Den., 269), and other actions, a motion, similar in all respects, was made and denied, upon the express ground that ‘the defendants could not object that the suit was prosecuted by a third person; in the names of the overseers of the poor, without their consent; that the overseers alone had the right to complain that their names had been improperly used.

And in the same case it was held that the overseers alone could object that they had not neglected to prosecute for ten days, before their names could be used by a third person. Bronson, Ch. L, says, “We think the defendant has nothing to do with the matter.”

So far as the liability for costs would exist, the plaintiffs are alone interested. If, after notice to them of bringing such ac- , tions, they refuse to take measures to stop them, they will be liable for costs.

In the case of Ninety-nine Plaintiffs a. Vanderbilt (1 Abbotts’ Pr., 163), the court required the attorney to exhibit his authority. That case was in conflict with the case in 4 Den., but in that case the court says: The defendant cannot insist upon the exercise of the power, by the court, to compel the production of the attorney’s authority, but must ask for the exercise of the discretion of the court, and submit to the terms which the court ■ might impose. The question, whether the defendant could make the motion, was not discussed. In most, if not all, of the cases cited, the motion was made by the plaintiff to stop the use of his name .as plaintiff. This power is not doubted. Nor do I doubt that the court has authority, if the facts submitted warrant it, to call on the plaintiffs’ attorney to show his authority, v by virtue of the general power which the court exercises over its • officers. But I do doubt whether the court should exercise such a power in behalf of a defendant whose only ground of making the motion was that no complaint had been made to the Board of Commissioners of Excise previous to bringing the action. If any injustice was to be done to the defendant by the prosecution, if any rights were to be violated, if any property was to be unjustly taken from him by such act of the attorney, the court should interfere; but not otherwise, At any rate, under the decisions, no other order should be made than to stay the proceedings until the further order of the court; and he might, perhaps, ask for security for costs, showing to the court a state of facts that would prevent his collecting them from the plaintiffs.

Clerke, J., concurred.

Leonard, J., dissenting.

—A further examination induces me to adhere to the views expressed in my opinion when this motion was before me at special term.

The plaintiffs’ attorneys were fully notified by the moving papers that their authority to commence this action was disputed. They omitted to show any retainer, and put themselves upon the ground that the court had no power to require them to do so.

Under the circumstances, it was a confession that they were without authority from the Board.

Ho proof was offered that the Board had refused to prosecute for ten days after complaint accompanied with reasonable proof of a breach of the law, so that some other party had thereby acquired the right to prosecute in the name of the Board'under the provisions of the law.

The action being strictly penal, it cannot be assumed, without evidence, that the right to prosecute has been so acquired by any informer.

Had there been a complaint made to the Board, the name of the informer could then be ascertained, and it would afford some security to the party prosecuted and to the public, against malicious actions. If every one may prosecute in the name of the Board, unless tlie Board choose to object, the provision in respect to laying the complaint before the Board, with reasonable proof of a violation of the law, is nullified, and its effect abrogated by the construction of the courts.

The Board have no property. A judgment recovered against them for costs will not insure collection.

These reasons, with those adverted to by me at special term, confirm me in the opinion then expressed, that the law has imposed a condition with which informers must comply before they can prosecute in the name of the Board for the recovery of penalties.

It may be .that the ends of justice will be sufficiently attained. by staying the plaintiffs’ proceedings, and I am therefore disposed to acquiesce in the modification of the order made at special term, .which my brethren have thought proper to adopt.

It seemed to me at special term inconsistent, when the charge of prosecuting these actions without authority was not denied, not to dismiss them ; if they were prosecuted without authority, as I think it evident they are, then the plaintiffs could not be. held liable for costs, and the attorneys stood confessed as the instigators of the actions, and of course justly liable.for the costs.

Order reversed without costs, and with leave to defendants to move for security for costs and for.,stay of proceedings until such security is filed.  