Pomroy v. Sperry

16 How. Pr. 211

• Court: New York Supreme Court
• Decided: June 15, 1858
• Status: Published

Opinion

Balcom, Justice

held, that the commissioners of excise ought not to have been- named as plaintiffs in the action, and that the action should have been brought exclusively in the name of “ the board of commissioners of excise,” of Cortland county ; but he said the plaintiffs’ attorney might amend the summons and pleadings in the action by striking out the names of the commissioners, and then the action would, stand solely in the name of “ the board of commissioners of excise of Oort- . land county,” as plaintiff. And he decided, upon the author. ity of the case of Thayer and another, overseers of the poor of the town of Otsego agt. Lewis, (4 Denio, 269,) that the answer did not contain any defence to the action; and said the defendant could not object that the action was prosecuted without the consent of the commissioners of excise ; that the commissioners alone had the right to complain that the action had been brought without their authority; also, that it was for the commissioners to object that they had not neglected to prosecute the defendant, so as to authorize other persons to prosecute him in the name of the board of commissioners of excise, pursuant to section thirty of the act under which the action was brought: And he held that the commissioners had authority, under such act, to institute actions whenever they are satisfied penalties have been incurred, which are recoverable in the name of “ the board of commissioners of excise!” He was, therefore, of the opinion the objections to a recovery in this action, were untenable; that the evidence offered was inadmissible, and directed the jury to find a verdict in favor of the plaintiffs, for $50; and the jury rendered such a verdict.