County of Erie v. Baltz

Kruse, J.: The undertaking given for the faithful discharge of the duties of the defendant Baltz, as county treasurer of Erie county, is a several as well as joint obligation. The rule, therefore, that in actions against the personal representatives of a deceased joint debtor, it must be alleged and proved that the debt cannot be collected against the surviving joint debtors, has no application to this case. That and the other questions in this case are fully discussed in the opinion of Mr. Justice Williams, and with the views expressed therein we all agree save in one respect. We differ over the conclusion there reached, that causes of action to recover penalties, under section 148 of the County Law (Laws of 1892, chap. 686) are pleaded in the complaint. If such conclusion is correct, then manifestly the complaint is objectionable in improperly uniting such causes of action with others therein set forth. It seems to me, however, that there is but one cause of action stated in each of the ten separate statements of facts, and that is for the failure by the defendant, the county treasurer, to pay over to- his successor money and property held in trust' by him, and to recover the value thereof, with interest, and the [146] penalty, as provided by section 147 of the County Law (as amd. by Laws of 1901, chap. 112.) The statement interjected therein that the defendant county treasurer failed to report does not, it seems to me, make a separate cause.of action to recover an additional penalty under section 148 of the County Law. That, and the other allegations showing that the county treasurer failed in his duty, in respect to this money and property, may not have been necessary, or even proper, in the complaint. The evident purpose of these allegations was to show that the defendant county treasurer misappropriated the money and property so held by him in trust, and converted the same to his own use, thus putting it out of his power to deliver the same over to his successor in office. Very true, the mere failure to pay over makes a cause of action, but his allegation of a failure to report, and other like allegations, should not be taken out of their connection with the statement of facts as a whole, to spell out a separate and independent cause of action thereon, when it seems evident that it was not so intended. When read in connection with the other allegations, I think there is but one cause of action alleged, or attempted to be stated. This view is fortified by the fact that each statement of the ten statements of facts is designated as but one cause of action, and the nature of the cause of action is characterized by the fact that it is brought by a successor of the defendant county treasurer, in the name of the county, and is authorized and directed by the State Comptroller, as is provided by said section 147 of the County Law, while the action for a penalty for a failure to report, under section 148 of the same law, must be brought by the district attorney. I think the demurrer was properly overruled, and that the interlocutory judgment entered thereon should be affirmed, with costs, with leave to plead over upon the usual terms. All concurred, except Williams and Hobson, JJ., who dissented in an opinion by Williams, J.