28 N.Y.S. 1089 | N.Y. Sup. Ct. | 1894
Lead Opinion
Under chapter 555 of the Laws of 1864 it is made the duty of the school commissioners in each county to apportion the public money, and prepare a certificate thereof to be delivered to the supervisor, and to deposit a copy in the office of the respective town clerks; and section 30 of the act provides that the moneys so apportioned to the towns shall be paid to the respective supervisors immediately upon their compliance with the requirements of section 31 of the act. Section 31 provides as follows:
“Immediately on receiving the commissioners’ certificate of apportionment, the county treasurer shall require of each supervisor, and each supervisor shall give to the treasurer in behalf of the town, his bond with two or more sufficient sureties approved by the treasurer, in the penalty of at least double the amount of the school moneys set apart or apportioned to the town, and of any such moneys unaccounted for by his predecessor, conditioned for the faithful disbursement, safe keeping and accounting for such moneys, and of all other school moneys that may come into his hands from any other source. If the condition shall be broken, the county treasurer shall sue the bond in his own name, in behalf of the town, and the money recovered shall be paid over to the successor having first given security as aforesaid.”
It is provided in section 32 that the "refusal of a supervisor to give such security shall be a misdemeanor. * * *” In section 3 of title 4 of the act it is provided as follows:
“A supervisor who shall embezzle or apply to his own private use any money or security received by him under any provisions of this act, including the two preceding sections of this title, shall be guilty of a misdemeanor.
Pursuant to such legislation, the appellant Merrill, as principal, and the other appellants as sureties, executed and delivered the bond prescribed by statute, which contained the following condition, to wit:
“That if the above hounden, J. Herman Merrill, supervisor, shall safely keep, faithfully disburse, and justly account for all the school moneys which have or shall come into his hands, apportioned and paid from the state treasury, and all other school moneys that have or may come into his hands from any other source, then this obligation to be void; otherwise, to remain in full force and virtue.”
Upon that bond this action is brought, and the complaint alleges a breach of the condition of the bond, in that the supervisor neglected and failed to safely keep, or faithfully disburse and account for, the school moneys placed in his hands; and that he was delinquent in the sum of $951.30; and that he had neglected and refused to faithfully disburse or account for that sum, according to the tenor of his bond. The answer interposed in this case alleges that the school moneys, after their receipt by the supervisor, were by him deposited in the banking house of E. 0. Stark & Co. (individual bankers), in the village of Oneida, to his credit as supervisor of the town of Stockbridge, and that at the time of the deposit thereof, in March, the said E. C. Stark & Co. were in good credit, and by the supervisor believed to be solvent, having a reputation of being a solvent and prosperous company. It is further alleged that on the 14th day of July, while the sum of $951.30 was so de
This brings us to the consideration of the principal question involved in this case, which arises in connection with the fact alleged and proved and found, to wit, that after the execution of the bond, and after receiving the public moneys, instead of keeping the same on hand in the actual, personal possession of the supervisor, instead of keeping them in specie, and instead of making a special deposit in incorporated banks or in the banking house of Stark & Co., he made a general deposit of the moneys in the hands of Stark 6 Co., individual bankers, who were believed by him, at the time of the deposit, to be solvent (but who, in fact, were insolvent), and that subsequent to such deposit Stark & Co. failed, made an assignment, and became unable to return the deposit of moneys so made by the supervisor to him, or to furnish him with means wherewith to honor the orders drawn upon him. Appellants rely upon Supervisors v. Dorr, 25 Wend. 440, affirmed 7 Hill, 583. In that case Dorr was county treasurer, and had given a bond for the faithful execution of the duties of the office, and to pay, according to law, all moneys that should come into his hands as such treasurer; and the defense interposed to an action upon the bond was that the “identical moneys received by him as county treasurer at his office-in the city of Albany, and before he was requested to pay out the same, * * * were feloniously stolen from his office, without any negligence, want of due care, or other blame or fault whatever on his part;” and upon a demurrer to the plea it was insisted that the treasurer did not, upon the receipt of, the money, become an absolute debtor to the county for the amount received, but that he held it as the agent of the county, and, in the respect mentioned, the case differs from the one before us. And in a note to the case found in 7 Hill it is said: “The law seems to have been once settled,—and properly, it is believed,—directly the other way, by the case of Muzzy v. Shattuck, 1 Denio, 233, decided by the supreme court in 'May, 1845.” In Muzzy v. Shattuck, supra, the action was upon a collector’s bond of the town of Hamilton, conditioned to faithfully execute the duties of his office of collector; and in answer to an
“Nothing short of a credit or payment, in my judgment, amounts to the performance of the condition of the bond. * * * The statute imposes a definite liability on the collector and his sureties for the omission to collect and pay; and, whether that omission is the result of malfeasance or neglect, unavoidable accident, or felony committed by another, I do not think it furnishss any defense to the action.”
Besides the note found in 7 Hill, to the effect that the case of Supervisors v. Dorr was overruled by Muzzy v. Shattuck, it appears in the opinion of Strong, J., in Boyden v. U. S., 13 Wall. 23, that upon an inspection of the two cases he was of the opinion that Supervisors v. Dorr “is no longer authority, even in the state of Hew York,” and he adds:
“Muzzy v. Shattuck, subsequently decided, and affirmed unanimously, in the court of appeals, is utterly irreconcilable with it, and it has settled the law otherwise in that state.”
However, in People v. Faulkner, 107 N. Y. 487, 14 N. E. 415, after referring to the decisions in the federal courts and to the decisions in our state courts, it was said:
“In view of the decisions of the federal and state courts above cited, and the fact that that decision has been much questioned, and has by some been supposed to have been overruled by the decision in Muzzy v. Shattuck, it should probably not be regarded as binding authority in this state, and the question therein decided may yet be regarded as an open one. When a case arises against an officer for not paying over and accounting for public moneys intrusted to him in his official capacity, it will be necessary to determine whether his liability, in the absence of statutes specially defining it, shall be governed by the common law, or whether the broad and more rigid rule of responsibility laid down in the cases above referred to shall be enforced in this state. It is not necessary to decide that question in this case, b -can e the money here received by the surrogate was not public money, but the money of a private estate or of private individuals.”
Considering the force of the statute to which reference has been' made, and the long line of authorities bearing on the pivotal question involved here, we may properly sustain the decision of the trial
It is quite obvious that the point decided in People v. Faulkner, supra, is not controlling in this case, and in pointing out the distinction between an officer holding public moneys in virtue of public statutes and an officer who held moneys, like a surrogate, for the benefit of individuals, the court said of the latter, to wit, the surrogate:
“He is merely the trustee or agent of the private parties interested in the money, and no greater or higher responsibility should be imposed upon him than would be imposed upon any agent or trustee.”
Inasmuch as the trial court found the questions of fact relating to the alleged negligence of the defendants and their good faith favorable to them to quite as great an extent as a jury would have been warranted in finding upon the evidence produced, we think the appellants cannot complain as to the mode of trial adopted at the circuit. The foregoing views lead to an affirmance of the judgment. Judgment affirmed, with costs.
MERWI27, J., concurs.
Dissenting Opinion
It seems to me that the weight of authority is to the effect that, in the absence of any statute enlarging it, the responsibility of a public officer is measured by the common-law liability of a bailee for hire, other than common carriers and innkeepers, and that, while such an officer is bound to act in good faith and exercise reasonable diligence in the discharge of his duties, he is not responsible for the loss of money coming into his hands, which occurred without fault on his part Supervisors v. Dorr, 25 Wend. 440; People v. Faulkner, 107 N. Y. 477, 14 N. E. 415; U. S. v. Thomas, 15 Wall. 337; Peck v. James, 3 Head, 75; Cumberland Co. v. Pennell, 69 Me. 357. I do not regard the cases of Muzzy v. Shattuck, 1 Denio, 233; Looney v. Hughes, 26 N. Y. 514; Fake v. Whipple, 39 N. Y. 394; and Bradley v. Ward, 58 N. Y. 401,—as in conflict with the doctrine of the foregoing authorities. The latter cases were all actions upon a collector’s bond, and it was held that, under and by virtue of the express provisions of the statute relating to the collection of taxes, a collector, upon receipt of his warrant, became a debtor to the county in the sum which he is authorized to collect, and that such indebtedness could be discharged only by producing to the treasurer a duplicate re
This leads to the consideration of the question whether the provisions of the bond in suit in any way increased or enlarged the defendant’s liability. The condition of the bond was that the defendant should “safely keep, faithfully disburse, and justly account for all the school moneys which have or shall come into his hands, apportioned and paid from the state treasury, and all other school moneys that have or may come into his hands from any other source.” This bond does not, I think, in any essential particular differ from that of a county treasurer or of a surrogate; and, with regard to the latter, the court of appeals, in People v. Faulkner, 107 N. Y. 489, 14 N. E. 415, said:
“There is nothing in the phraseology of the bond given by the surrogate which enlarges his statutory liability. It is a bond simply for the faithful
Within the principle of that case, and the case of Supervisors v. Dorr, I think it should be held that there.was nothing in this-bond which in any way increased or enlarged the liability or responsibility of the defendants, and that as the trial court has found that the defendant Merrill acted in good faith, and that the moneys were lost without any fault or negligence on his part, the plaintiff was not entitled to recover. Thus I am led to dissent from the-opinion in this case of my Brother HARDIN.