Andrews v. Harrington , 19 Barb. 343 ( 1855 )

By the Court,

Weeles, J.

The summons issued by the justice did not state the official character in which the plaintiffs sued. It is a sufficient answer to the objection now taken on that ground, that no such objection was made before the justice. The objection there was in these words: “ as it declares in civil action for penalties.” That was no objection. The point is entirely technical, and not to be favored.

The objection now taken, that the summons was improperly indorsed, cannot be maintained. The indorsement was as follows : “ Issued according to the proceedings of title nine, chapter twentieth, part first of the revised statutes.” This I think wa¡s a substantial compliance with the statute, which uses the word “ provisions,” instead of “ proceedings.” (2 R. S. 481, § 7.)

At the return of the summons, one Andrews appeared for the. plaintiffs. The defendant by his attorney denied the authority of Andrews to appear. The return of the justice then says, “ Plaintiffs’ counsel on oath declares his authority, by one of the overseers of the poor of the town of Potter to answer to this suit. Plaintiff sustained by the court.” Then follows the complaint, in which the official character of the plaintiffs as overseers of the poor of the town of Potter is disclosed. It was afterwards proved that the plaintiffs were such overseers. This, I think, should be held sufficient, especially as the defendant appeared and answered the complaint and defended at the trial. (Fanning v. Trowbridge, 5 Hill, 428. Wilcox v. Clement, 4 Denio, 160.)

Upon the trial, the plaintiff made clear proof by at least one witness, whose testimony the justice, so far as we can perceive, had no right to disregard or discredit, of the sale of one quart of whisky. No error is complained of in respect to that evidence. After-wards the justice allowed the plaintiffs to prove the declarations of one John Conley, to the effect that the defendant had sold him whisky contrary to the statute, and this when the defendant was not present at the time the declarations so proved were made. This evidence was received, notwithstanding objections were interposed to it 'by the defendant. This- was clearly error, but not such an error as to vitiate the judgment; because the recovery was for one penalty, (§25,) and if the plaintiffs were entitled to recover at all, they were entitled, by virtue of the other evidence referred to, to recover that amount; and if the next point now made for the appellant can be got over, the justice was bound to render judgment for at least one penalty of §25. (Bort v. Smith, 5 Barb. 283.)

The remaining point now made by the appellant is, that there was no proof that the liquor proved to have been sold by the defendant was sold in the town of Potter. This. is undoubtedly true. There is not a word of evidence tending to show, nor any thing in the case from which it can be inferred, in what town the liquor in point of fact was sold. It is not proved, nor does it in any way appear, in what town the defendants lived. This objection seems quite formidable. The plaintiffs prosecute as overseers of the poor of the town of Potter. They cannot recover unless the defendant sold liquor in violation of the statute in that town ; and although it was clearly proved that the defendant did sell in violation of law, yet it is not shown that it was done in the town of Potter. (2 R. S. 681, § 19.) But my brethren think, that inasmuch as the return shows that the justice resided in the town of Potter, and-the plaintiffs prosecuted as overseers of the poor of that town, and no question or objection was raised before the justice as to the place where the liquors were sold, it must have been assumed upon the trial, that the selling was in Potter; and that the cause seems to have been tried upon that assumption. Upon the whole, I am disposed, with some hesitation, to concur in this view.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

The judgment of the county court is therefore affirmed.