Mayor of New York v. Brett

2 Hilt. 560

• Court: New York Court of Common Pleas
• Decided: June 27, 1859
• Status: Published

Opinion

Daly, First Judge.

The only point arising in this case is, whether the action should have been brought in the name of the real parties in interest; and whatever doubts may have existed on that point heretofore, they are set at rest by the decision of the Court of Appeals in the People v. Norton, 5 Seld. 176. It was held in that case that an action upon a bond, given by a trustee and his surety to the people of this state, for the benefit of certain parties interested in the estate of which the defendant was trustee, was properly brought in the name of the people, and there is nothing in principle to distinguish that case from, the present.

If leave of the court to prosecute the bond had not been obtained before the commencement of the suit, the defendants’ remedy was by motion to the court to set aside the proceedings. The plaintiffs were not bound to show upon the trial that they had obtained the leave of the court, and the want of proof of that fact constituted no ground for a non-suit. The plaintiffs are entitled to judgment.

Ordered accordingly.

Upon consultation, all the judges concurred in this opinion.

*

See The Mayor, &c., of N. Y. v. Doody, 4 Abbott Pr. R. 127; Davis v. Kruger, 4 E. D. Smith, 350.