The motion in this case was to dismiss the complaints and direct the attorneys to pay the costs. The plaintiffs’ attorneys, if they had any authority to bring the actions, could have shown it on the motion, and there was no necessity for an alternative order that they should produce such authority or the actions should be dismissed.
The difficulty with me on this appeal is as to the propriety of the defendant to make the motion. In Thayer agt. Lewis, and other actions, (4 Denio, 269,) a motion, similar in all respects, was made and denied, upon the express ground that the defendants could not object that the suit was prosecuted by a third person, in the names of the overseers of the poor, without their consent; that the overseers alone had the right to complain that their names had been improperly used. And in the same case it was *508held that the overseers alone could object that they had not neglected to prosecute for ten days, before their names could be used by a third person. Bronson, Ch. J., says : “We think the defendant has nothing to do with the matter.”
So far as the liability for costs would exist, the plaintiffs are alone interested. If, after notice to them of bringing such actions, they refuse to take measures to stop them, they will be liable for costs.
In the case of Ninety-nine plaintiffs agt. Vanderbilt, (1 Abb., 163,) the court required the attorney to exhibit his authority. That case was in conflict with the case in 4th Denio; but in that case the court says : “ The defendant cannot insist upon the exercise of the power, by the court, to compel the production of the attorney’s authority, but must ask for the exercise of the discretion of the court, and submit to the-terms Avhich the court might impose.” The question whether the defendant could make the motion, was not discussed. In most, if not all, the cases cited, the motion Avas made by the plaintiff to stop the use of his name as plaintiff. This poAver is not doubted. Nor do I doubt that the court has authority, if the facts submitted Avarrant it, to call on the plaintiffs’ attorney to show his authority, by virtue of the general power which the court exercises over its officers. But I do doubt whether the court should exercise such a power in behalf of a defendant Avhose only ground of making the motion was that no complaint had been made to the board of commissioners of excise previous to bringing the action. If any injustice Avas to be done to the defendant by the prosecution ; if any rights were to be violated; if any property was to be unjustly taken from him by such act of the attorney, the court should interfere, but not otherwise. At any rate, under the decisions, no other order should be made than to stay the proceedings until the further order of the court, and he might, perhaps, ask for security for costs, showing *509to the court a state of facts that would prevent his collecting them from the plaintiff.
Clerke, J., concurred.