The opinion
Foldett, J.:
When a person prosecutes in the name of an overseer of the poor, without having complied with the statute, the action is unauthorized, the act unlawful, and the person instituting the action is chargeable with the costs thereof.
It has long been the law that persons carrying on actions in the name of another without authority, are chargeable with the costs. (Butterworth v. Stagg, 2 Johns. Cases, 291.) Persons not parties to the record are frequently charged with costs. The statute under which this action was brought, authorizes “ any other person to prosecute,” to become the prosecutor in the name of the overseer. Brown became the prosecutor without authority, and is liable for the costs.
' The question of the absolute liability of a person for costs, who, after complying with the statute, rightfully brings an action, but is defeated, is not in this case.
The order appealed from should be affirmed with $10 costs, and the disbursements for printing.
Learned, P. J., and Bockes, J., concurred.
Order affirmed, with $10 costs, aud disbursements.
*277 At the same term a motion was made for a re-argument of the case. The decision of the General Term, affirming the order .dismissing the complaint in this action, was made in November, 1879. Upon the re-argument the following opinion was delivered.
Per Curiam:
"We have examined the papers in this case, and the printed arguments for and against a re-argument; and we see no reason to grant the motion. By chapter 628, Laws of 1857, section 30, -the right to prosecute for penalties is given to any person in case the overseers, &c., shall neglect, for ten days after complaint that a provision of the act has been violated, “ accompanied with reasonable proof of the same.” In this case there was no reasonable proof, we might say that there was no proof presented to the overseer that Giles had violated the act. • The complaint presented was on information and belief; its allegations were of the most general kind, stating-that Giles bad sold liquors during five months to divers persons, not even identifying the kind of liquor, or where it had been drunk. Such a complaint can impose no obligation on the overseer to prosecute. The plain meaning is that the complaint shall be so definite, and shall be accompanied with such, proof as reasonably to satisfy the overseer, or if he is not satisfied, to enable him to investigate and decide whether or not there had been a violation of the statute.
The motion for re-argument is denied with $10 costs against Brown.
Present — Learned, P. J., and Bockes, J..; Follett, J., not ..acting.
Motion for re-argument denied, with $10 costs, and disburse--^ ments.