Carpenter v. Doody

1 Hilt. 465 | New York Court of Common Pleas | 1857

ING-haham, Eiest Judge.

The plaintiff recovered a judg ment against Doody, a constable, for not returning an execution delivered to him. He now sues on the official bond to recover the amount of such judgment from the surety.

The constable is liable for any neglect in the discharge of his duties; and where the statute imposes on him a duty (such as returning an execution within a given time) and he neglects to perform such duty, he is liable. It does not follow, however, that he is in all cases liable for the whole amount of an execution in a case where ho neglects to return it. The provisions of the Revised Statutes on this subject, as applicable to justices’ courts, do not apply to the courts in New York; ’and although ¡prima facie the plaintiff’s damages are presumed to be the amount of the execution, the constable, like the sheriff, might show that r.o damage or less than the full amount had been sustained, and limit the recovery thereto. The recovery against the constable is prima facie evidence of tbe amount for wbiob the surety is liable. In this case no evidence is given to contradict that presumption, and I conclude that to be the proper amount, if any liability of the surety exists therefor.

Is the surety liable for this neglect of the constable?

The condition of the bond is, “that he shall in all things well and faithfully perform and execute the duties of the office of constable, without fraud, deceit, or oppression.” This condition requires two things — one, to perform the duties of the office, and, secondly, to perforin such duties without fraud, deceit, or oppression ; the first part intended for the protection of the creditor, the second for the protection of the debtor. Tbe constable, if healthfully perform the duties of his office in regard to an execution, would not incur any liability to tbe creditor, even if guilty of oppression towards the debtor. For such ojipression the debtor has the cause of complaint.

The 149th section of the act (2 R. L. 1813, ch. 86), which provides for the taking of this bond, also provides that said bond may be put in suit, in case of any recovery for any default or misconduct in office. A default in office is a non-compliance with the statute in discharging any of tho duties imposed. Fraud is not necessary to enable a party to recover for a default; but the mere neglect or omission to do an act or duty which the law imposes is a default on the part of the constable, for which he is liable.

The same questions which arc discussed in this case were raised in The People v. Brush (6 Wendell, 456). In that case the officer was the sheriff, and the condition of his bond was tbe same as this. Mr. Justice Marcy says, “The condition of the bond may be broken without any positive act of fraud, deceit, or oppression.” And again, “ Ilis neglect of duty is a breach of tbe bond, although it should not involve in it any positive act ot fraud, deceit, or oppression.”

The condition of the defendants’ bond was sufficient to hold the defendants liable for any neglect of duty imposed by statute, wheth<? such neglect was accompanied with fraud or not.

The statutes (Sess. Laws, 1837, ch. 461, and 1851, cb. 514) make the executions in these courts returnable at a certain period, and the neglect to return them is a default on the part of the officer, for which he and his sureties may be made liable.

The plaintiff is entitled to judgment.