People v. . Booth , 32 N.Y. 397 ( 1865 )

On demurrer to an answer for insufficiency, the defendants are at liberty to attack the complaint on the ground that it does not state facts sufficient to constitute a cause of action. (8 How. 261; 12 Barb., 573; Code, §§ 144, 148.)

The property described in the complaint is alleged to belong to the city of New York, in its corporate capacity. The plaintiffs assert no title or interest in the property or right to its possession or control. By what right they intervene to bring this action is not apparent; and there is no principle or precedent upon which their claim to do so can be upheld.

The corporation of the city of New York has abundant capacity to maintain suits to defend its property and possession; and it is questionable whether any lack of diligence in the exercise of this part of its powers, has ever been manifested. But however wanting in energy its spirit of litigation may be, the plaintiffs are not called upon to incite the city to activity, nor to become the voluntary champion of its wrongs, whether real or imaginary. The People of the State, like all other parties to actions, must show an interest in the subject matter of the litigation, to entitle them to prosecute a suit, and demand relief. This they have utterly failed to do in this case, and, for that reason, the complaint ought to have been dismissed by the courts below.

The question of the constitutional validity of the act under which the appellants were appointed metropolitan fire commissioners, is not properly raised for our consideration in this case. It has been fully disposed of in The People v.Pinckney, (ante, page 377,) and the right of the appellants to exercise that office, and possess and control the property described in the complaint in this case, is there fully adjudicated.

The judgment appealed from is reversed, and judgment ordered for the appellants on the demurrer.