Fire Department of New-York v. Kip

10 Wend. 266 | N.Y. Sup. Ct. | 1833

By the Court,

Savage Ch. J.

This is simply an action of trover, not involving the regularity of the proceedings of the mayor, recorder and aldermen, in their condemnation of the powder, but proceeding upon the ground that the powder became forfeited by being brought into a place prohibited; and the property in it thereby became divested from the former owner, and vested ipso facto in the plaintiffs.

It is unnecessary to discuss all the points raised on the argument by the defendant’s counsel. *As this is not a suit professing to be brought under the act, it was not necessary that the declaration should contain such an averment, nor that it should appear to have been commenced within two months.

That the plaintiffs are a corporation, was proved by the production of the statute declaring them to be so. This case in that respect is different from those corporations created by statute, and to become entitled to corporate powers by something to be done by them in futuro. In such cases, we have held that at least proof of user under the charter shall be produced; but here the act declares that the plaintiffs are a corporation, and shall continue such until 1838.

The only point necessary to be discussed is, whether the title to the powder became vested in the plaintiffs by being brought into the prohibited place, or by the seizure 1 If such title accrues to the plaintiffs, it must be by virtue of some statute. The first statute on this subject is found in 2 R. Laws, 364, § 66, which prohibits the keeping more than 28 pounds in any one place, &c.; and declares that if any person shall keep any greater quantity than 28 pounds in any one place, he shall forfeit all such gun powder, and also the sum of $125 for every 100 weight of powder, to be recovered, with costs of suit, in any court having cognizance thereof, by any person who will sue for the same, provided all actions for violations of this section be prosecuted within two calendar months after the offence committed. Had there been no statute but this, it is very clear to my mind that there must be a prosecution, and that such prosecution must be commenced within two months. Such is the language of the act. In that case. the property would become forfeit by the act of keeping it contraiy to law; but a proceeding in a court of law was necessary to give the former owner an opportunity of a legal investigation, and such prosecution must be brought within the limited period. The act of 1820 has not changed the liabilities or the rights of the former owner; it has simply transferred the right to prosecute from any person who will sue for the same to the fire department, if indeed the fire department have a right to prosecute a^all. The act of 1820 declares that the fines and penalties imposed by so much of the law passed the 9th of April, 1813, as relates to the more effectual prevention of fires, shall and may be recovered, with costs of suit, in any court of record within this state by the fire department of the city of New-York for their own use. It is denied by the defendant’s counsel that ike forfeiture of the powder is included in the terms fines and penalties. It is not necessary to decide whether it is or not; but conceding that it is, the statute which gives the right to the plaintiff declares the manner of establishing that right, to wit, by prosecution in a court of record. I apprehend the suit thus contemplated is not an action of trover, but an action upon the statute setting forth the forfeiture. If these views are correct, the judge erred at the circuit, and a new trial must be granted; costs to abide the event.