Albro v. Rood

31 N.Y. Sup. Ct. 72

• Court: New York Supreme Court
• Decided: January 15, 1881
• Status: Published

Opinion

Learned, P. J.:

Joel J. Albro, as commissioner of highways, recovered a judgment in April, 1879, against' Joseph Rood, in the Supreme Court, amounting to $143.48 damages and costs, for a penalty for his obstructing a highway. Afterwards the plaintiff brought this action to set aside a deed executed by Joseph Rood to Dennis Phillips, in October, 1861, and certain subsequent conveyances, as fraudulent as against creditors. The plaintiff was nonsuited on the ground that it was not alleged in the complaint, nor proved on the trial, that at the time of commencing the action or at the time of trial Albro was a commissioner of highways.

As no case is made showing the evidence, we must assume that no such proof was given. The plaintiff insists that any such defense was waived.

The answers set up that the plaintiff in his individual capacity had no standing in court; that as commissioner of highways he was not authorized by law or vote to bring the action. When the cause was brought to trial the defendants distinctly urged, among other points, that the complaint did not allege that plaintiff was such commissioner, and at the close of the trial.

We think the learned justice held correctly in nonsuiting the plaintiff. Perhaps if there had been proof to justify it, an amendment of the complaint might have been had. But there was no proof, as we must assume, that Albro was a commissioner at the time of the commencement of this action or of its trial. The cases cited by the learned justice, especially Gould v. Glass (19 Barb., 179); Bonesteel v. Garlinghouse (60 id., 338); Plumtree v. Dratt (41 id., 333), sustain his position.

This was not an objection as to mere “ capacity to sue,” as claimed by the plaintiff. It involved the question who was the plaintiff, the private person Albro, or the official commissioner of highways ? The cases cited by the plaintiff of actions brought in the corporate name of some corporation do not apply. (Phœnix Bank v. Donnell, 40 N. Y., 410.) There can he no question then that it is the corporation which is the plaintiff.

Nor can it be said, as claimed by the plaintiff, that the cause of action was the property of the plaintiff in his private capacity. Although commissioners of highways are personally liable for damages arising from their neglect, yet that principle does not show that penalties recovered in their name belong to them. (People ex rel. Loomis v. Town Auditors, 75 N. Y., 316.)

A more important question is, whether the plaintiff can in any event maintain this action. The power to commissioners of highways to sue is to be found in 2 R. S., m. p. 473, § (92). This gives a right to sue for penalties and “ upon any contract lawfully made with them or their predecessors in their official character.” The penalties are to be applied to improving roads and bridges. (1 R. S., m. p. 526, § [131].) They therefore, when collected, are part of the funds of the town in the commissioner’s hands. (1 R. S., m. p. 502, § 3.) Certainly the town is the person beneficially interested, as the money received for penalties directly affects the amount to be raised.

The town can bring an action at law or in equity where a cause of action exists. (1 R. S., m. p. 356, § 1.) And in all such suits, except where town officers are authorized to sue in their name of office, the town is to sue by its name. (§ 2.)

Now the argument of the plaintiff seems to be that the section (92) above cited anthorizes the commissioners to sue “ upon any contract lawfully made,” and that a .judgment is a contract. But the answer to that is that the defendants in this case, who claim the title to the land, the alleged fraudulent grantees, Dennis Phillips and Dearborn Rood, have made no contract with the plaintiff. The action to set aside their fraudulent deeds is not an action on contract. It is based on fraud. Even admitting, therefore, that a judgment might be included in the words “ any contract lawfully made” which is not quite certain.; still this action is brought to set aside fraudulent conveyances, and is not an action upon a contract, certainly not against the alleged fraudulent grantees.

And it would certainly be very doubtful whether the legislature could have intended to authorize an officer of such limited power to involve the town in actions of this character, often long and expensive. No precedent is cited.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.