Wice v. The Commercial Insurance Co.

against him, by an infant is entitled to an appearance by such infant by a guardian ad litem, who is pecuniarily responsible for his costs. (Fulton v. Rosevelt, 1 Paige, 178; Wood v. Wood, 8 Wend. 369; Dalrymple v. Lamb, 3 id. 424; Cook v. Rawdon, 6 How. Pr. 233; Ten Broeck v. Reynolds, 13 id. 462.) In all these cases the question as to the solvency of the guardian was raised at the incipiency of the proceedings, and no countenance is given in any of them for any dismissal or stay of the plaintiff's proceeding, especially by way of stay of an appeal from an adverse judgment, by reason of the insolvency of the guardian occurring during the pendency of the action. It is the duty of a defendant to raise this question as soon as apprised of who is the person appointed as guardian, and if he does not then question his responsibility he acquiesces in his sufficiency to act in that capacity. The court does not, except in this respect and under some statutory enactments, have any just authority to insure to defendants. security for their costs; and as a general rule, where such security is once given, as required by statute or a rule of court, and accepted without question, the subsequent insolvency of the sureties furnishes no ground for exacting other solvent parties to be substituted. (Hartford Quarry Co. v. Pendleton, 4 Abb. Pr. 460; Eiesman v. Swan, 11 id. 112; Willett v. Stringer, 15 How. Pr. 310; Dudley v. Goodrich, 16 id. 189.) This contingency has only received legislative recognition and been provided for (as far as discovered) in the amendment to section 335 of the Code made in 1859, authorizing the court, on an appeal from a money judgment, to require new sureties in place of such as have become insolvent. By the order appealed from, the infant plaintiff loses his right of appeal by reason of his guardian ad litem having become insolvent, unless on payment of defendant's judgment. No precedent or authority is found for such an order after appeal taken from an adverse judgment, or which can justify the extreme results which it produces. The appeal from the special to the general term without giving any security is a matter of right (Genter v. Fields, 1 Keyes, 483), and cannot be trammeled by any such summary order, preventing any

The Health Department of the City of New York v. Pinckney.

review of the justice of the judgment appealed from, until the plaintiff has fully satisfied its terms. In my opinion, the order should be reversed with costs and disbursements.

LARREMORE and JOSEPH F. DALY, JJ., concurred.

Order reversed.

THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Respondent, against MARY PINCKNEY, Appellant.

(Decided June 4th, 1877.)

The Health Department of the city of New York, created by the charter of 1873 (L. 1873, c. 335, § 80, p. 505), cannot sue for the penalty of $50 for violation of a special order made by it, as the Metropolitan Board of Health (created by L. 1866, c. 74) could.*

The Health Department of the city of New York, created by the charter of 1873, is not such a continuation of the Metropolitan Board of Health, created by the act of 1866 (L. 1866, c. 74), as to make the statutory regulations for the enforcement of penalties by the latter body applicable to it. *

The provisions of the act amending the charter of 1873 (L. 1873, c. 757, § 12, p. 1125), by which the " authority, duty and powers" of the Metropolitan Board of Health are conferred upon the Health Department, did not give the Health Department power to sue for penalties in those cases where, by statute, the Metropolitan Board of Health had been entitled to do so."

APPEAL by the defendant from a judgment of the Third District Court, in the city of New York. The facts are stated in the opinion.

Allison & Shaw, for appellant.

W. P. Prentice, for respondent.

The same decision as in this case was made by the Court of Appeals in Health Department v. Knoll, 70 N. Y. 530.

The Health Department of the City of New York v. Pinckney.

CHARLES P. DALY, Chief Justice.-The action was brought to recover a penalty of $50 from the defendant, for neglecting to comply with an order made by the Health Department, directing her to fill up certain sunken lots, and the question presented and discussed upon the appeal is, whether the Health Department has a right to sue for such a penalty where it makes a special order, as in this case, and the party upon whom it is served neglects or refuses to comply with it.

The former Metropolitan Board of Health had such a right (L. 1866, vol. 2, p. 1462); but it does not follow that the present Department of Health have it, unless it is apparent that it was meant to be, and is, simply a continuation of the former body, with merely a change in the name, or a change or modification in some other respect, or unless there is some provision in the act creating it, or in some subsequent act, the intendment of which fairly is that it was to have this power.

It is not a continuation of the previous body, nor is there any provision in the act creating it reserving to it such a power; but, in my judgment, the contrary.

The Metropolitan Board of Health was differently constituted, and had a different territorial jurisdiction, embracing the city and county of New York, and the whole or parts of adjacent counties, or so much of the territory of the State and of the cities, towns and villages thereof, as then composed the Metropolitan Police District of the State, and was denominated and known as the Metropolitan Sanitary District of the State of New York. It was composed of four sanitary commissioners of the district, appointed by the governor of the State, the health officer of the port of New York, and four commissioners of the Metropolitan police, who, together, constituted what was denominated the Metropolitan Board of Health. (L. 1866, c. 74, §§ 1, 2.) The present Health Department was created by the charter of 1873 (L. 1873, p. 505, ch. 335, § 80) for the city of New York alone; and consists of the president of the board of police, the health officer of the port, and two commissioners of health, who, together,

The Health Department of the City of New York v. Pinckney.

constitute the board known as the Health Department of the city of New York, and which, within the limits of the city and county of New York, was created for the same purposes substantially, as the former Metropolitan Board of Health. We would not, however, be justified in holding that the new body, though created for the same general purposes, is to be regarded within the limits of the city and county of New York as a continuation of the previous body, so as to make the statutory regulations for the enforcement of penalties under the former body applicable to it. It differs in its organization, in its territorial jurisdiction, and what is more material, the act creating it contains entirely different provisions respecting penalties and the mode of enforcing them. The present body, the Department of Health, was required immediately upon its organization to frame a sanitary Code, embracing the existing sanitary ordinances, and to add to it, from time to time, for the security of life and health in the city of New York, and any violation of this Code, it is declared, shall be punished as a misdemeanor, and the offender shall also be liable to pay a penalty of $50, to be recovered in a civil action in the name of the mayor, aldermen and commonalty of the city of New York, and all orders made by the pre-existing department, it is declared, may be executed and compelled by the new body. The new body, the present Department of Health, had it in their power to provide by this Code, that for any violation of their orders under it, the offender should be subject to punishment for a misdemeanor, and also to a penalty of $50, leaving the penalty to be enforced, as the charter declares, in a civil action brought by the city. It is certainly a very anomalous proceeding, that for any violation of the sanitary Code, a penalty of $50 may be recovered by a civil action brought by the city, and that a penalty of $50 may also be recovered by the Department of Health for any violation of or refusal to comply with its orders, by the strained construction that the penalty of $50, which the former Metropolitan Board of Health might recover against any person who should "violate or refuse to conform to any ordinance, rule, sanitary regulation, or special or

The Health Department of the City of New York v. Pinckney.

general order of that board" (L. 1866, Vol. 2, p. 1462), continues in force, although that board is abolished, entitling the new body to recover the same penalty from any one who violates or refuses to comply with its orders. Under the former board there was no sanitary Code with penalties for the violation of its provisions framed by the board, though there may have been existing sanitary ordinances, and this circumstance creates an essential difference. The sanitary Code adopted by the Health Department has made a very important and material change; and as the department could and still can make the proper provisions in the sanitary Code to enforce its authority by penalties to be prosecuted for in the mode provided for in the act creating it, there is no reason why it should resort to doubtful powers and be sustained in doing so. It is provided in the sanitary Code (§ 178), that any person who omits or refuses to comply with its orders shall be liable to the arrest, suit, penalty, fine and punishment provided for in the acts of 1866 and 1867; without saying anything about their liability to penalties or punishment under the charter of 1873, by which the department came into existence. This section (§ 178) also provides that any person who omits or refuses to comply with the provisions of the sanitary Code, shall be subject, not to imprisonment for a misdemeanor, and also to a penalty of $50, under, the 80th section of the charter of 1873, but to the arrest, suit, penalty, fine and punishment as provided and declared in the acts of 1866 and 1867, thus entirely ignoring the provisions of this 80th section of the charter of 1873, or, at all events, in no way referring in this section of the sanitary Code to the liability of the offenders for violation of the Code under the act of 1873. Indeed, if it were in the power of the department to do so in the framing of the Code, it was providing that the prior legislation should be superior to and control the subsequent legislation. It was, in fact, enacting that penalties for the violations of the Code should not, as the charter of 1873 declares, be recoverable in a civil action brought by the city, but in an action brought by the Department of Health, or, in other words, assuming to the Depart