Agent of the State Prison v. Rikemam , 1 Denio 279 ( 1845 )

By the Court, Bronson, Ch. J.

A sufficient answer is given to the motion for judgment as in case of nonsuit, and it is denied, but the plaintiff must stipulate to try the cause at the next circuit to be held in the county of Westchester.

The motion to amend must be granted. It is settled that the office of supervisor cannot sue. (Supervisor of Galway v. Stimson, 4 Hill, 136.) And I am unable to comprehend how any office can either sue or be sued, though the person holding the office may have a capacity to do and suffer both. The law has provided in many cases that an officer may sue in his name of office; but still it is the officer, and not the office, who brings the suit, and so the matter must appear on the papers. The sheriff sues in his name of office—that is, in his proper name— adding his official designation.

It is said, however, that the statute relating to suits by and against the agents of the state prisons (2 R. S. 763, § 25) is peculiar in its language, and plainly prescribes a different rule. A careful reading of the statute will shew -that this is a misapprehension. If, where the term “ agent” is used, we read “ the individual holding the office of agent,” as the sense obviously requires, there will be no difficulty in reconciling the statute with the general principles of law in analogous cases. The contrary construction would produce singular incongruities. In the same section the office (as distinguished from the officer) would have “ transactions and dealings on account of the said prisons.” Again, if the term “ agent” means the office without the incumbent, then the office must give bail, take an oath, and do many other things which can only be done by the individual. (§§ 21, 22, 23, 28.)

The relief must, however, be granted, on payment of the costs of the circuit and of this motion.

Ordered accordingly.