Grand Lodge v. Freifeld

Giegerich, J. This action is brought upon a bond executed by one"Frederick 'Frey as principal, and one Ja'cob Kraemer, since deceased, as surety, to the plaintiff, a domestic corporation, in the penal sum of $500 and bearing date the 8th day of January, 1891. The bond recited that said Frederick Frey “is about to act as grand treasurer of the above-named Order der Herrmann’s Sohne, and by reason thereof will have the control of sums of money and be required to perform various acts,” and the. condition was “ that if the above boúñden Frederick Frey shall well and truly account for, pay over and dispose of all moneys and property of said Grand Lodge of the State of New York, Order'der Herrmann’s Sohne, which may come into his possession or under his control, and shall well and truly discharge and' perform all his duties as 'stick' grand treasurer, then this obligation .to be void, otherwise to remain in [277] full force and effect.” It appears from the undisputed evidence that Frey was elected as such grand treasurer on the first Sunday of Eovember, 1890, for the term of one year, pursuant to the constitution of said grand lodge, which provided that the election for officers of such lodge “ shall take place yearly at the time of the annual general assembly,” and that he gave such bond for the faithful discharge of his duties; that although continued in office until on or about the 15th day of July, 1894, by new elections, made from year to year, Frey did not give a new bond; and that the defalcation for which it is sought to hold the executors of the surety (Kraemer) liable, occurred subsequent to the said first term of office. Plaintiff claims that the bond covers the entire time during which Frey acted as such grand treasurer, whig* the defendants contend that, as the defalcation occurred after the first year, they are not liable. The question thus arises whether said bond was a continuing security for the period during which Frey actually continued in office, or was only to cover the year for which he was first elected. It is well settled that where an officer of a private corporation gives a bond conditioned for the faithful performance of his duties, and unlimited as to time, such bond is only for the term for which the officer had been elected at the time it was given, and that the sureties thereon are not liable for any breach of the condition happening after the expiration of the term, although the officer may be continued in office under the same or a new appointment or election unless the bond has been renewed (Kingston Mutual Ins. Co. v. Clark, 33 Barb. 196; Overacre v. Garrett, 5 Lans. 157, Am. & Eng. Ency. of Law, vol. 17, p. 70, subd. 4; Bigelow v. Bridge, 8 Mass. 275; Lexington, etc., R. Co. v. Elwell, 8 Allen, 371; Chelmsford Co. v. Demarest, 7 Gray, 1; South Carolina Soc. v. Johnson, 10 Am. Dec. 644; 1 McCord, 41; Dover v. Twombly, 42 N. H. 59; Treasurer of the State of Vermont v. Mann, 80 Am. Dec. 688; 34 Vt. 371; Welch v. Seymour, 28 Conn. 387; Mutual Loan & Building Ass’n v. Price, 16 Florida, 204; 6 Am. Corp. Cases, 336; Harris v. Babbitt, 4 Dill. 185; 11 Fed. Cases, 612. And see Kellum v. Clark, 91 N. Y. 390, 393), or failing a stipulation that the sureties shall be liable during any successive term of office to which the officer may be elected or appointed. Trustees of the Richardson School Fund in Attleborough v. Dean, 130 Mass. 242; 7 Am. Corp. Cases,. 531. See Bissell v. Saxton, 66 N. Y. 55, 60; Lewison v. Hoffman, 8 Misc. Rep. 583, 586. Applying these rules to the present case, Frey’s [278] office having been for but one annual term, it follows that in the absence of a special stipulation on the part of the surety to be liable' for defalcations occurring during a subsequent term of office, the obligation of the bond did not extend beyond the year for which the principal was first elected; and that as the defalcation occurred subsequent to this period, the defendants are not liable. The case of the Union Dime Savings Inst. v. Feltz, 25 Abb. N. C. 357; 21 N. Y. St. Repr. 723; 4 N. Y. Supp. 607, cited by. the plaintiff, has no application to the question presented., In that case the bond was Conditioned for the faithful and honest discharge of the principal's duties “ as clerk, or in whatever capacity he may serve said bank,” and it was held that the same covered defaults committed after his promotion to a different position.' Here-we have no such situation, this bond being conditioned for the faithful performance of the duties of but one specified office, em- ■ bracing none connected with other possible positions.. Eor these reasons the motion to set aside the verdict and for a new trial must be denied. Motion denied.