3 Abb. Pr. 252 | N.Y. Sup. Ct. | 1867
Judgment of non-suit in the previous action was no bar. (Brintnall v. Foster, 7 Wend. 103; Audubon v. Ex. Ins. Co., 27 N. Y., 216.) Such was always the rule in actions at law. In equity suits the rule is different. A decree dismissing the complaint, unless made without prejudice, bars a second suit for the same cause.
The real question in this case is whether the addition made to the capital of the fund placed in charge of the commissioners by the act of April 10, 1850, discharged the sureties upon their official bonds. An examination of that act will show that it contains no provision effecting such a result, unless it is produced by this addition thereby made to the capital of the fund. This presents a question of vast importance to the public. It not only affects all the official bonds of all this class of commissioners holding office at the time of the passage of the act, but an examination into the matter would, I think,
An official bond is a contract with the people for the faithful discharge of the official duties of the officer. In the present case it was that Jackson should faithfully discharge the duties of said commissioner, pursuant to the act entitled, “an act authorizing the loan of certain moneys belonging to the United States, deposited with the State of Hew York for safe keeping,” and should discharge his said duties without favor, malice or partiality. These duties Jackson has not performed, but the securities claim to be discharged on the ground that subsequent to the making of the bond, five hundred dollars was added to the capital of the fund. The duties of the commissioner as.to this five hundred dollars were precisely the same as required for the capital of the fund, and precisely those required by the act referred to in the bond. The position of the defendants must go to the extent that any alteration made by the legislature, in the act, affecting the duties of the commis
It may be said, that although such might be the general rule, yet that the bond in the present case contains a reference to the act, and requires the duties to 'be performed in accordance therewith. To this it may be answered, that section 3 of the act, providing for giving the bonds and its requisites, requires no such reference; and that the bond in suit, in addition thereto, contains all required by it—that is, the true and faithful performance of its duties—without favor, malice or partiality. The act does not prescribe the amount of money to be placed in, or which shall remain in the hands of the commissioners. In the absence of authority determining the question otherwise, my conviction is, that any alteration, addition or diminution of the duties of a public officer, made by.the legislature, does not discharge his official bond, or the sureties thereon, so long as the duties required are the appropriate functions of the particular office.; that such alterations are within the contemplation of the parties executing the bond; that imposing duties of another description, and not appropriate to the office, would discharge the sureties, not coming within such contemplation.
The question was regarded by the supreme court as settled in favor of the sureties by a series of decisions. If this be so, it is equally binding upon this as upon any other court. No case holding any such doctrine has been decided by the courts of this State. Neither the opinion of the learned justice, nor the brief of the- counsel, contain any reference to any case in this State where the point has been involved, nor have I been able to find any such case. Bower v. McDonard (1 Eng. L. & Eq. 1), was a case between private parties, a bank and its agents, where the duties and responsibilities of the latter were increased by the bank; and has, therefore, no application to the present case. The same may be said (The North-Western Railway Co. v. Whitney) of a contract between the company
On the 15th day of January, in the year 1850, Mahlon Jackson was appointed one of the commissioners for the county of St. Lawrence, for loaning certain' moneys belonging to the United States, deposited with the State of New York, for safe-keeping. The appointment was made in pursuance of the provisions of chapter 150 of the laws of 1837. (Laws 1837, p. 121.) The defendants became sureties for said Jackson in the bond executed by him, under the said act. The act required the bond to be in a penalty named, and to be conditioned “ that if the above bounden (Jackson) shall well and faithfully perform the duties of said commissioner, pursuant to the act, entitled ‘ an act authorizing a loan of certain moneys, belonging to the United States, deposited with the State of New York for safe-keeping,’ and shall discharge his said duties without favor, malice or partiality, then their obligation to be void, otherwise t® remain in full force and virtue ” (p. 126, § 20). The bond was executed in conformity with this statute. The statute provided for the distribution of certain moneys received by the State from the federal government, among the different counties of the State, according to their population, for the purpose of being loaned to the people of the said counties, in the manner therein specified. The duties of the commissioner, whose appointment was therein provided for, consisted, generally, in receiving the said moneys from the State, in loaning them upon bondnnd mortgage, collecting the interest thereon yearly, and the principal from time to time as it might become payable, re-investing the principal, and paying the interest to the State. The act contained much detail, but the substance of the duties of the commissioners is as I have stated. The commissioner (Jackson) and his colleagues received, under this act, the sum of about $80,000, in bonds and mortgages and cash. The State had also, in 1792 and in 1808, made certain loans to the people of the different counties, of its own moneys, and had appointed commissioners to attend to the same, whose duties were of the same general character as those appointed
The defendants are sureties simply, and must respond according to their bond, nor more nor less. It cannot be enlarged or extended, nor are we called upon to diminish it. The position to which Jackson was appointed, was that of a public officer. He was appointed by the governor, with the conciurence of the senate. He was required to take the usual oath of office; and, in various sections of the act, the position is in terms designated as an office. The chief duty of his office was to receive and invest certain moneys intrusted to his care by the State. When the further sum of $500 was placed in his charge by virtue of the act of 1850, it was in all respects subject to the same regulations and to be disposed of in the
So in The N. W. Railway Company v. Whinody (10 Exch. R., 77), the defendant became surety in a bond, which recited that A. B. had been appointed clerk to a coal company, at a yearly salary of ¿£100, and conditioned for the faithful accounting for all moneys received by him for the use of the company. After a time the- company substituted for the salary a commission of 6d. per ton fpr all the coal on which he should obtain orders. On a suit against the sureties, it was held that the condition was restrained by the recital, and the liability only continued while the clerk remained at the fixed salary The present case more nearly resembles that of Pybus v. Gibb (6 Ellis & Bl., 903; 88 Eng. C. L., 903), where a bond was executed by G., and two sureties, conditioned for indemnifying the high bailiff of the county court, against liabilities from the misconduct in his office of G., who was appointed one of the bailiffs. At the time the bond was executed the duties of the
A new trial should be had.
All the judges concurred.
Judgment reversed.