The opinion
Rodenbeck, J.
The defendant Evelyn M. Edell demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is brought to restrain the unauthorized use of a sewer in the town of Gates by the defendants and sufficient facts are alleged in the complaint to constitute a cause of action. It seems to me that a serious question is presented, however, as to the legal capacity of the town board to institute this action. Town of Hempstead v. Lawrence, 138 App. Div. 473 ; Tuma v. Piepenbrink, 77 Misc. Rep. 357 ; 160 App. Div. 225 . The town board has no authority to sue on behalf of the town or with reference to any matters relating to the town except by express permission of the legisla *265 ture. Chapter 370 of the Laws of 1898 under which the lateral and branch sewers were constructed does not confer any authority upon the town board to institute suits of this character. It provides that the powers and duties of the town board with respect to the construction of the sewer shall cease upon their certification to the town assessors of the full cost and expense of their construction. (§ 9.) The actions authorized by section 15 relate to those growing out of the “ construction ” of the sewers and not to suits of the nature of this one. For the purposes of constructing the sewers the town board by the statute were made executive officers but upon the completion of the sewers the town alone would have authority to restrain persons from using the sewers who were not entitled to do so. The legal incapacity of the plaintiff to sue is required to be specifically pointed out and made a distinct ground.for demurrer. Any defect of this character can not be taken advantage of under a demurrer that the facts alleged do not constitute a cause of action. Irving National Bank v. Corbett, 10 Abb. N. C. 85 ; Van Zandt v. Van Zandt, 26 N. Y. St. Repr. 963. The demurrer, therefore, must be overruled.
Demurrer overruled.