Gardner against Board of Health of the City of New York

Gardner against Board of Health of the City of New York. The Boai'd of Health of the City of New-York, as consiituted under R. S., Part 1, Ch. XIV, Titles 1-5, is not a corporation capable of suing or being sued in a collective name. Appeal from the superior court of the city of New-York. Action against the Board of Health of the city of New-York co nomine for services rendered by the plaintiff as a physician during the prevalence of the cholera in the summer of 1849. The trial was before a referee, who found that the Board of Health of the city of New-York was composed [by virtue of an ordinance passed by common council ] of the persons holding the offices of mayor, aldermen and assistant aldermen of the said city, and was a distinct and separate body from the mayor, aldermen and commonalty of the said city and from the common council thereof, having a different organization, holding separate meetings, exercising different powers, having a clerk of their own and keeping separate minutes of their proceedings. He found the other facts necessary to charge the defendant, and upon his report judgment was entered for the plaintiff for $462. On appeal the judgment was reversed, and the complaint dismissed at general term, and the plaintiff appealed to this court. J. M. Martin for the appellant. Henry E. Davies for the respondents. [MAJORITY] The judgment was affirmed upon the ground stated in the court below by the late Chief Justice Oakley, as follows: By the court, Oakley, Ch. J. This action is brought against the Board of Health eo nomine, treating them as a corporate body. The first question which arises is, is this board such a corporation. A very extended argument was gone into on both sides, as to the character, power and duties of the board. It is an old institution, but it received a separate and distinct organization by the Revised Statutes of 1830. Under this the common council had the power of appointing the members of the board, and by an ordinance for that purpose it was declared that it should be composed of the aldermen and assistant aldermen of the city. We cannot find that this board is anywhere created a corporation by express terms of law, nor can we perceive that it has any of the features of a corporate body. It has no succession — no seal and no funds. It is organized by the city corpora- tion under the laws of the state, and may be changed as to its number at the pleasure of the common council. The counsel for the plaintiff has pressed upon our notice a class of cases, under which, it is contended, this board may be considered as a quasi corporation ; and it has been likened to the cases in which suits have been brought by and against overseers of the poor. But in all such cases the actions are instituted against the individuals themselves, describing them by their name of office, and not against them as a corporate body. We also are referred to a section of the statute, the purport of which is that no action brought by the Board of Health, and by overseers of the poor, shall abate by reason of the death of any one of its members; and it is said that if the board can sue, it is to be inferred that the legislature clearly contemplated they could also be sued. We think this clause of the statute is misunderstood. If it were intended to authorize the board to sue as a corporation, in its corporate name, the provision that a suit should not abate by the death of any one of its members is entirely senseless and unmeaning. That can only apply to actions brought in the names of the individuals composing the board, and in this respect the board is like the overseer's of the poor who must always sue in their individual names. Our conclusion is, therefore, that no action can lie against the board as a corporate body. The judgment must be reversed and the complaint dismissed. All the judges concurring. Judgment affirmed.