Kingston Mutual Insurance v. Clark

33 Barb. 196 | N.Y. Sup. Ct. | 1860

By the Court,

Gould, J.

In this case the. true tenor and construction of the bond executed by Thomas Clark, the intestate, must be the same now, or at the time this suit was brought, as they- were at the time the bond was executed. Then it was the fact, and was known to be, (certainly by the plaintiffs) that Daniel L. Decker had been elected then-secretary for but one year; and that it would be their duty, at the end of that year, to elect a secretary, either another person or the same person. We cannot intend that they did not mean to discharge their duty. And, of course, they understood the appointment to be such that his intended “continuance in office,” by virtue of that appointment, was to be for but one year. And in fact at the end of that year they re-elected him ; and it nowhere appears that it was an act necessary to his entering on the discharge of the office, that he should give a bond, though a bond was required by their by-laws. Had he, this first year, by consent of the company, actually entered on the performance of his duties as secretary, without giving a bond, I think he would have been secretary, and not (as in the case of a public officer,) a mere intruder. And that, the subsequent year, he gave no bond, does not, I think, make him secretary merely by holding over. He must be held to be in, by virtue of his new appointment. But even were this not so, as above stated, when the bond was executed, he was regularly elected for one year, and the bond must have been given and received with that construction as a necessary part of the instrument ; not to be varied, or extended, by any neglect on the part of the obligees to perform their duty of electing a secretary at the end of that year. • '

[Albany General Term, December 3, 1860.

Gould, Hogeboom and Peckham, Justices.]

The case seems to me precisely covered by that of Hassel v. Long, (2 Maule & Sel. 370-1,) and the reason there given seems to me entirely conclusive as to the justice of such a construction. “If the bond may continue beyond the current year, it may do so for the life of the collector, during the whole period of his remaining in office. It will attach, on the surety, whenever the person for whom he undertakes is in default; and we hnoiu of no means subsisting at common law, by which the surety could redeem himself from this interminable rislc.”

The judgment entered on the report of the referee should be affirmed.

Judgment affirmed.