29 Barb. 239 | N.Y. Sup. Ct. | 1859
By the act of the 17th March, 1857, entitled “ an act relative to a certain highway in- the county of Dutchess,”
James A. Seward, the plaintiff, brings this action to recover five of the penalties imposed by the act; and he is bound to show some authority for bringing the action. Concede that the act has been broken, and the penalties incurred, by what right does James A. Seward institute and maintain this proceeding ? The law must be so construed as to give it effect, if possible, and at the same time it must be construed strictly, for it is a penal statute. It imposes a penalty of $20 for every offense against it; “ one half to the complainant and the other half to the county treasurer of the county of Dutchess, for the benefit of the poor fund of said county.” It does not say who shall sue and bring the action for the penalty. It is silent on that subject. If the person making the complaint may sue because he is entitled to one half of the penalty, why may not the treasurer of the county of Dutchess also sue, who is entitled to the other half. And if an interest in the penalty confers the right to bring the action, why should not both thé complainant and the county treasurer unite for that purpose. The amendment to the act, passed at the same session of the legislature, April 14,1857, does not overcome the difficulty. It adds, at the end of the second section, these words: “and in case' the complainant fails to sustain his complaint, he shall be holden for the costs thereof.” This provision seems to imply that the person making the complaint' is not to bring the action; for the plaintiff prosecuting such an action and failing, there would be judgment against him for the costs of the action, under the general law in regard to costs, and the provision in the amendment would be unnecessary. Had the amendment declared that, in case the complainant fails to sustain his complaint, judgment should be entered against him for the costs, the implication would have been clear and certain that it was intended he should be the plaintiff prosecuting the action; for otherwise
Lott, Emott and Brown, Justices.]
These authorities appear to me to decide the question against the plaintiff. The judgments in the justice’s and in the county courts should be reversed.
Laws of 1857, vol. 1, p. 840.