Sullivan v. Husson

50 How. Pr. 475

• Court: New York Supreme Court
• Decided: February 15, 1874
• Status: Published

Opinion

Van Brunt, J.

—The complaint in this action is demurred to upon three grounds, viz.: 1st. That the court has no jurisdiction. 2d. That there is a defect of parties defendant. 3d. That the complaint does not state facts sufficient to constitute a cause of action.

As to the last ground, the only argument used, is, that the defendants are sued as individuals, and no cause of action is shown against them as such. It seems to me, that from an examination of the complaint, it appears that they are not sued as individuals, but as commissioners' under the act of April 12, 1867, referred to in the complaint. The authorities cited show that the suit could not be maintained against the defendants as commissioners, without their names as individuals being mentioned in the title of the cause, but no case has been cited showing that it is necessary to add in the title the official designation to the individual name, when it sufficiently appears in the body of the complaint that they are sought to be charged in their representative capacity.

. It is true, that the defendants, being sued in their representative capacity, are sued as public officers, and if it appear upon the trial that no part of the cause of action arose in this county, the action must be discontinued (Edmonds' Revised Statutes, vol. 2, 426, sec. 3). Yet this forms no ground of demurrer. There is no misjoinder of parties defendant. The defendants are clearly contracting parties, and the only persons to whom the plaintiff can look for compensation, and if a judgment is obtained against them, unless they have exceeded their powers, they - can by mandamus, compel the supervisors of each of the towns mentioned in the act, either to pay the money needed or to deliver the bonds mentioned in the act. . The demurrer must be overruled, with liberty to the defendants to withdraw the demurrer and answer on payment of costs.