People v. Russell

| N.Y. Sup. Ct. | May 15, 1830

By the Court,

Savage, Ch. J.

This case • comes before - us on a demurrer to the defendants’ third plea. Two points are presented : 1. Is the first breach in the declaration good? 2. Can the third plea of the defendants be sustained ? The breach charges that the defendant Russell did not faitfully perform the office and the duty of commissioner, &c. The general rule is, that it is sufficient to negative the covenant where such general assignment necessarily amounts to a breach, (8 Johns. R. 114; 5 Johns. R. 174;) as upon a limit bond where the condition is that the party shall remain a true and faitful prisoner, a breach that he did not remain a true and faithful prisoner, but escaped, is good; there the fact of escaped is sufficient from which to ascertain the liability of the defendant. But where the breach in the terms of covenant gives no data from which damages can be assessed as in this case, I Very much doubt its sufficiency. So, uPon a bond with condition to indemnity and save harmless a surety against a particular act, a breach that the obligor had not saved the obligee harmless without shewing how he had been damnified, I apprehend would be insufficient. But it is not necessary to pursue that inquiry. The question arises here, not upon demurrer to the breach, but upon a demurrer to the defendants’ third plea. The defendant avails himself of this to attack the declaration. This he has a right to do, but the question is presented as upon general demurrer to the whole declaration: Is the declaration good ? not whether a particular count or a particular assignment of a breach is good ; and as there is one assignment of a breach unquestionably good, the plaintiff is entitled to judgment for the breach Well assigned, and is only barred for the residue. (Com. Dig. Pl. C. 48 and C. 32. 2 Saund. 380.)

The question recurs, therefore, upon the validity of the plea, which is, that when the commissioner received the monies which he neglected to pay, he was solvent, and would have paid if prosecuted, and would have indemnified his sureties ; but before this suit was brought he became, and still continues insolvent. The case of The People v. Jansen, (7 Johns. R. 332,) is relied on by the defendants, in which the court expressly say that the plaintiffs are chargeable with the consequences of the neglect of their agents. There was a reason for then being so chargeable in that case which does not apply here. The loan officers under the act of 1786 were the officers of the county, and were responsible to the supervisors. The supervisors were the plaintiffs in interest in that case, and the loss was sustained by their own negligence, not the neglect of their agent. But in The People v. Berner, (13 Johns. R. 384,) though the court taire a distiction between that case and the preceding, they apparently concede that the defence would have been good if the commissioner had become insolvent, and the security had been prejudiced. They however shew, that under this act there is no board to examine the accounts and make report. It is urged for the defendant that it was the comptroller’s duty to have prosecuted when the bond was forfeited. The statute in that respect is directory, and formed no part of the contract with the surety. (9 Wheaton, 736.)

It was not the duty of the comptroller to make any report on the subject, or to give notice to the surety of the defalcation of his principal; and the surety by examination at the comptroller’s office might at any time have ascertained the state of the accounts. This subject has been much discussed in the supreme court of the United States, (9 Wheat., 720" court="SCOTUS" date_filed="1824-03-23" href="https://app.midpage.ai/document/united-states-v-kirkpatrick-85450?utm_source=webapp" opinion_id="85450">9 Wheaton, 720, 11 id. 134, and 12 id. 505,) where in analogous cases that court have established the principle, that laches is not imputable to the government, and that statutory directions to public officers are given for its own security and convenience, and to regulate the conduct of its officers, but being directory form no part of the contract with the surety; and the case of The People v. Jansen, so far as it conflicts with these principles, is overruled. The government are placed on the same footing with individuals ; and as to them, mere indulgence, without connivance or fraud, forms no defence to the surety.

The plaintiffs are entitled to judgment on the demurrer to the third plea, with leave to amend on payment of costs.