The action was commenced November 30, 1903, to recover from the defendant three penalties of twenty-five dollars each because of his alleged failure to comply with the requirements of section 196 of the Public Health Law (Laws of 1893, chap. 661, as amd. by Laws of 1900, chap. 667).
The complaint, so far as is important to note, is as follows:
*504“ Complaint.
“ Plaintiffs, as the State Board of Pharmacy, complain of defendant, and allege that they constitute the State Board of Pharmacy of the State of New York, duly elected, qualified and acting as such; and that prior to the commencement hereof, said Board has duly authorized this action to be brought in its name.
“ On information and belief:
“ First cause of action:
“I. That at all the times hereinafter mentioned the defendant was duly licensed as a pharmacist and druggist to retail drugs, medicines and poisons and compound physicians’ prescriptions in this State; and that he conducted a pharmacy pursuant to said license throughout said time at the village of Theresa, in Jefferson county, New York, as proprietor.
“II. That neither in the month of January, 1901, nor at any other time during that year, did the defendant make a statement, under oath, to the Board of Pharmacy, showing what licensee was in charge of the pharmacy above described, and showing what other licensees or registered apprentices were engaged or employed therein, nor either or any of those facts. In consequence of said omission defendant did not receive from the Board of Pharmacy during said year a certificate of registration to he granted for the purpose of being conspicuously displayed in said place. All of which the defendant was commanded to do by section 196 of Chapter 667, Laws of 1900, amending art. XI of chap. 661, Laws of 1893.
“ III. That by reason of the premises, defendant has forfeited to the State Board of Pharmacy the sum of twenty-five dollars, * * *. ‘ Second cause of action: ”
(The same as the first cause of action, except relating to the year 1902.)
“ Thi/rd cause of action:
“ I. Plaintiffs repeat and reallege all the statements contained in paragraphs I and III of the first cause of action, but as relating to the omissions of defendant hereinafter mentioned.
“ II. That during the month of January, 1903, .the defendant did not make any statement, under oath, to the State Board of Pharmacy, showing what licensee was in charge of the pharmacy above *505described, and showing what other licensees or registered apprentices were engaged or employed therein, nor either or any of those facts. In consequence of said omission defendant has not obtained from the State Board of Pharmacy, and has not, during said year, conspicuously displayed in said place a certificate of registration. And that defendant did not make such statement until about June of said year. All of which defendant was commanded to do in January by section 196 of chapter 667, Laws of 1900, amending article XI of chapter 661, Laws of 1893.
“ Wherefore, plaintiffs, as the State Board of Pharmacy, demand judgment against defendant for the sum of seventy-five dollars, with interest,” etc.
The defendant, in his answer, as a second defense alleged: “III. For a second and further defense to the third cause of action set forth in said complaint, defendant alleges the due payment of two dollars and his request for registration of said alleged State Board of Pharmacy during the year commencing January 1, 1903, but that such sum was never returned to him nor any certificate issued to defendant by the said alleged State Board of Pharmacy for that year.”
The plaintiffs demurred to such alleged defense on the ground “ that it is insufficient in law upon the face thereof.”
It seems to me that the demurrer in this case was properly overruled. The answer demurred to related only to the alleged third cause of action set forth in the complaint. It is well settled that if the facts stated did not constitute a cause of action, a demurrer by the plaintiffs would not lie to an answer to it, no matter how defective such answer might be. The rule is stated in Baxter v. McDonnell (154 N. Y. 432): “ A demurrer searches the record for the first fault in pleading and reaches back to condemn the first pleading that is defective in substance ; because he who does not so plead as to invite an issue cannot compel his adversary to so plead as to accept it. * * * As ‘ a bad answer is good enough for a bad complaint,’ it is necessary * * * to see whether the allegations of the complaint are sufficient to constitute a cause of action.” Under this rule it is necessary to determine whether or not the alleged third cause of action set forth in the complaint states facts sufficient to constitute a cause of action against the defendant. It *506may be conceded that by the reference in the alleged third cause of action to paragraphs I and III in the alleged first cause of action in the complaint they were properly added to and made a part of the allegations respecting said third cause of action; but we think that with those two paragraphs added in full no cause of action was stated. There would then be no allegation that the persons named as plaintiffs in the complaint constituted the State Board of Pharmacy, that they were duly elected, had qualified and were acting as such, nor would there be any allegation to the effect that the commencement of this action by the State Board of- Pharmacy was duly authorized by said board. It seems to me that this was an essential requisite in order to entitle the plaintiffs to the relief demanded. In Wallace v. Jones (68 App. Div. 192) the court said : “ The complaint should state in each paragraph setting out a separate cause of action, the official position of the defendant against whom a judgment is asked, and the capacity in which he acted, and all the facts necessary to make that cause of action complete on its own face.”
We think the rule thus stated is equally applicable to the plaintiffs and that it is necessary that the complaint in each paragraph setting upa separate cause of action should state the official position of the plaintiffs who ask judgment and the capacity in which they acted and all the facts necessary to make that cause of action complete on its own face. In the case at bar if the meaning of the complaint be interpreted in accordance with the contention of the plaintiffs we should read the 1st and 3d paragraphs in the first alleged cause of action set forth in the complaint and then paragraph 2 in the third alleged cause of action. Reading those three together and giving full significance to all the allegations therein contained, we think the complaint fails to state a cause of action because, as above suggested, it fails to state that the plaintiffs constitute the State Board of Pharmacy ; that they were duly elected, qualified and were acting as such or that they were authorized by action of the board to bring the action for and on its behalf. These allegations are made in the introductory part of the complaint, but when the pleader attempts to set up the third cause of action they are in no manner referred to and he does not seek to incorporate them into the allegations respecting his alleged third cause of action.
*507For these reasons I conclude that the interlocutory judgment overruling plaintiffs’ demurrer should be affirmed, with costs.
Interlocutory judgment and order reversed, with costs, and demurrer sustained, with costs, with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal.