Mayor, Etc., of N.Y. v. . Goldman

Finch, J. The defendant was sued as surety upon the official bond of Edward D. Gale, as attorney for the collection of arrears of personal taxes, and judgment has been rendered against him whicli he aslcs us to say is erroneous. His first allegation of error is that the breach complained of is founded upon a condition which the bond does not contain. but which the statute expressly declares it ought to contain. The statute authorizes the appointment of an attorney for the collection of arrears of personal taxes, and requires the appointee to give a bond to the city “ conditioned for the faithful performance of the duties of his office and the payment over of all taxes collected by him.” The condition contained in the bond is, “if the said Edward D. Gale shall w'ell and faithfully execute the duties of said office without fraud, deceit or oppression, the above obligation shall be void, etc.” It is, therefore, upon the omission from the bond of an express condition to pay over moneys collected that the objection rests. There might be force in the criticism were it not for the fact that the statute explicitly makes it one of the duties of the office to pay over the taxes collected, and so that specific duty is included in the general duty, and the double condition is merely cumulative. In Farrar v. United States (5 Peters, 373), upon which the defendant relies) there was the same general condition to perform the duties of the office, and the same omission of the special condition to pay over, and the court expressed a doubt whether, under the language of the statute, proof could be given that payment over was one of the duties of the office. But that was a case where the statute did not make it so, and extrinsic proof was needed to establish the fact if it existed; and the court had no doubt that where the conditions are cumulative the omission of one condition cannot invalidate the bond so far as the other operates to bind the party. That is the situation here. The statute itself makes it a duty of the office to pay over the taxes collected; arid a condi *399 tion to faithfully perform the duties of the office includes and embraces the duty of payment over. To add that specific condition would be cumulative merely, and its omission, if a defect at all, is covered by the provision of the Revised Statutes. (2 R. S. § 35, p. 863, 6tli ed.), which makes the bond sufficient, although it does not in all respects follow the prescribed form if, nevertheless, it does conform thereto substantially. The second objection made in behalf of the 'surety is wholly technical. It is that the bond related to the duties of “ attorney for the collection of personal taxes,” and the appointment was to the office of “ attorney for the collection of arrears of personal taxes.” There is no pretense that there was more than one office, or that Gale was assigned to a different duty from, that covered by the bond. The criticism rests wholly upon the name of the office, which was sufficiently described in the recital of the bond. The omission of the word “ arrears ” was not material and could not have misled anyone. The third objection is aimed at the proof of Gale’s default so far as it rested upon the books of the.department. The hooks are public records required by law to be kept (Consol. Act, §§ 849, 850), and are admissible upon proof that they come from the proper custody. The cases cited on behalf of the respondent, show that the absence of entries of payment, which in the ordinary course of business and under the explicit requirements of the statute would exist if payment had been made, furnishes lawful evidence of non-payment. ■ (Corning v. Walker, 100 N. Y. 547; Matter of Silvernail, 45 Hun, 578.) In addition to the evidence of the books, the officers, whose duty it was to enter the returns of taxes collected by Gale whenever he made any, were called as witnesses and testified to the entry by them of such returns as they received from him, but none of which covered the collections shown to have beenmade by Gale for which the surety has been held hable. "We think the default was properly and sufficiently proved. The judgment should be affirmed, with costs. All concur. Judgment affirmed.