2 How. Pr. 26 | N.Y. Sup. Ct. | 1885
Chapter 628 of the Laws of 1857, as amended by chapter 820 of the Laws of 1873 (3 R. S. [7th. edi], 1985, sec. 30), and which is the act to regulate the sale of intoxicating drinks, provides, “in case the parties or persons whose duty it is to prosecute for any penalty imposed for any violation of the provisions of this act shall, for the period of ten days after complaint to them that any person has incurred such penalty, accompanied with reasonable proof of the same, neglect or refuse to prosecute for such penalty, any other person may prosecute therefor, in' the name of the overseers of the poor of the town in which such alleged penalty was incurred, and in the manner provided by section 22 of this act as the same is amended by section 1 of this chapter. ”
One Luzerne J. Smalling has commenced an action under the clause quoted against the petitioner, Horatio A. Martin, to recover penalties- for alleged violations of the excise law in the name of the overseers of the poor of the town of Windham, before a justice of the peace of such town.
The defendant in such action by petition asks that said Smalling may be compelled to give security for the costs of such action.
It is also difficult to say, even though this motion was made in behalf of the overseers of the poor, upon what principle a court can require a party, who is using the name of the overseers of the poor as plaintiffs precisely as a statute authorizes to give security for costs. The statute giving the right thus to prosecute has imposed no such restriction, and because it has not “ it would seem to follow,” as Daniels, J., said in Commissioners of Excise agt. McGrath (27 Hun, 425), “that he could not be required to give security for costs.”
The views just stated are submitted to the general term if the question shall there be again presented. If this motion involved no other question than that which has been discussed the decision in Sharp agt. Fancher would probably control my action, although for the reasons given it seems to me to be erroneous.
Second. The action in which the order is sought is pending in justices’ court, and this court cannot obtain jurisdiction to make any order in that action by a mere notice of motion. It is true that this court can, where it has jurisdiction over parties by an action duly brought therein, under section 818 of the Code of Civil Procedure, “ by order remove to itself ” an action “pending in another court,” and may “ consolidate ” that pending in another court “'with that in the supreme court,” but a party to an action pending in justices’ court cannot make a motion in the supreme court to control the
Thwd. The defendant does not need the security for costs which he seeks. He has responsible parties to the record as plaintiffs who are liable to him for costs if the action iails, and the opposing affidavits show that the party prosecuting in the name of the overseers, is pecuniarily responsible.
The motion must be denied, with ten dollars costs.