Dissenting Opinion.
Leonard, Justice.A further examination induces me to adhere to the views expressed in my opinion when this motion was before me at special term" now reported in How. Pr. R., 312, (March No., 1862.)
The plaintiffs’ attorneys were fully notified by the moving papers that their authority to commence this action was disputed. They omitted to show any retainer, and put themselves upon the ground that the court had no power to require them to do so. Under the circumstances it was a confession that they were without authority from the board.
No proof was offered that the board had refused to prosecute for ten days after complaint accompanied with reasonable proof of a breach of the law, so that some other party had thereby acquired the right to prosecute in the name of the board under the- provisions of the law.
The action being strictly penal, it cannot be assumed, without evidence, that the right to prosecute has been so acquired by any informer. Had there been a complaint made to the board, the name of the informer could then be ascertained, and it would afford some security to the party prosecuted, and to the public, against malicious actions. If every one may prosecute in the name of the board, unless the board choose to object, the provision in respect to laying the complaint before the board, with reasonable proof of a violation of the law, is nullified and its effect abrogated by the construction of the courts.
The board have no property. A judgment recovered against them for costs will not insure collection.
These reasons, with those adverted to by me at special term, confirm me in the opinion then expressed, that the *510law has imposed a condition with which informers must comply before they can prosecute in the name of the board for the recovery of penalties.
It may be that the ends of justice will be sufficiently attained by staying the plaintiffs’ proceedings, and I am therefore disposed to acquiesce in the modification of the order made at special term, which my brethren have thought proper to adopt.
It seemed to me at special term inconsistent, when the charge of prosecuting these actions without authority was not denied, not to dismiss them; if they were prosecuted without authority, as I think it evident they are, then the plaintiffs could not be held liable for costs, and the attorneys stood confessed as the instigators of the actions, and of course justly liable for the costs.