Supervisors of Monroe v. Beach, 9 Wend. 143

Supervisors of Monroe v. Beach

9 Wend. 143 | N.Y. Sup. Ct. | 1832

By the Court,

Nelson, J.

It is obvious that some of the errors of the defendants have arisen from a misconception of the pleadings on the part of the plaintiffs, especially as it regards the replication to the plea of performance and the breaches assigned in such replication. Three breaches are assigned : In the first it is alleged that Smith as treasurer had received $20,000, that he had not paid over the same, and had neglected and refused to account. To this breach the defendants rejoin correctly, and issue is taken. The se*146cond breach assigned, the plaintiffs contend, is a single assjgnmen^ though embracing several facts. On the other band, the defendants have viewed it as an assignment of a variety of breaches, and have undertaken to answer each separately. Upon a critical examination of the facts alleged in this assignment, there can be no doubt that it substantially presents but one breach of the condition of the bond ; it shews in the hands of the treasurer #25,000 of public monies belonging to the county, which he was bound to hold subject to the written orders of the supervisors, 2 R. L. 138, § 4, and that those written orders were drawn and presented, and payment refused. This is a breach of the condition in the bond “ to pay over all the monies which shall come to his hands as treasurer according to law,” and nothing more, and should have been answered as such. It was said, on the argument, that the defendants had different answers to the several orders presented, and therefore it would be unjust to preclude them from availing themselves of such distinct defences. There are two material facts alleged in the breach : the amount of money in the hands of the treasurer, and the refusal to pay on the orders of the supervisors being presented, and issue might and should have been taken upon one of them. Both are material to constitute the breach, and a denial of either would have put it in issue. Instead of pursuing this course, the defendants have denied the accounting with the supervisors, the balance of #5000, the subsequent receipt of #20,000 and then answer in detail each order set forth in the breach. It is obvious that the accounting is only inducement to the balance of #5000 found due and remaining in the hands of the treasurer, and consequently the denial of it is wholly immaterial. It is equally as palpable that the denial of any puplic monies in the hands of the treasurer constitutes a complete answer to the breach assigned; for if he had no money,he of course was not bound to pay the orders presented. I can perceive no objection to the defendants taking issue upon the orders in detail, as the facts may be : but in that case, they ought not to deny wholly the allegation of money on hand in the treasury. They might have stated the amount of money received, according to the fact, and then accounted for that *147sum, which, taken together, would have presented but one answer to the breach assigned. The several rejoinders, therefore, to this breach are bad as presenting immaterial issues, and for duplicity. The rejoinder to the third breach is also liable to the same objections.

Judgment for plaintiffs on demurrer, with leave to defendants to amend.