Overacre v. Garrett

Mullin, P. J. The defendants, who are sureties in the bond on which the action is brought, resist a recovery, on the ground that their liability ceased with the year for which their principal was elected, and that for the year for which they were liable there was no breach of the condition of the bond. The condition was that the said colletor should well and truly, and in all respects, duly and faithfully execute all the duties of his office. The duties of the collector are prescribed by the statute, and are to receive of the persons taxed the amount payable by each, and, if not paid voluntarily, then to enforce payment by seizure and sale of the goods and chattels of the persons assessed, in the same manner as collectors of towns enforce payment by virtue of warrants issued by the board of supervisors for the collection of State, county and town taxes. (Laws of 1864, §§ 75, 80, 81, 83, 84, 85, of article 7, of title 7 of chap. 555 of Laws of that year.) It is also the duty of the collector to keep in his hands all moneys received and collected by him, to be by him paid out upon the order of the sole trustee, or .of a majority of .the trustees when there are three. He is also to report in writing [159] to the annual meeting all his collections and disbursements, and to pay over to his successor in office, when he has duly qualified and given bail, all moneys in his hands belonging to the district. (§ 88 of the same title and chapter.) By the ninetieth section of the same chapter, it is provided that, for the recovery of all balances in the hands of the collector which he shall have neglected or refused to pay to his successor, the trustee shall have remedy on the official bond of the collector, or any action or remedy given by law. And they shall apply all such moneys, when recovered, in the same manner as if paid without suit. The sureties on the official bond of an officer whose term of office is for a single year, are not liable for any breach of the condition happening after the expiration of the term, although the officer may he continued in office under the same or a new appointment or election. (Kingston M. Ins. Co. v. Clark, 33 Barb., 196 ; Hassel v. Long, 2 M. & S., 370; Peppin v. Cooper, 2 B. & A., 431; Leadley v. Evans, 9 E. C. L., 469.) The only breaches that can be reasonably insisted upon either of the bonds are: 1st. The refusal to accept and pay the draft drawn by the plaintiff on the collector in December, 1869, or 2d. The omission to pay the balance in his hands to his successor in office. As to the first, the refusal to pay did not occur during the year for which the bond in suit was given, but in the second year and while the second hand was in force. As to the second breach, the successor to whom by the statute the duty of the collector to pay, was a person other than himself. Payment to himself would not, therefore, be a performance of the condition. And as no successor was elected, it follows that payment to a successor could not be made, and hence that condition could not be performed. It follows, that the only condition which under the circumstances could be performed was payment on the order of the trustee. And as there was no breach of that condition during the life of the bond sued on, there could he no recovery. [160] .The judgment of the County Court was therefore erroneous, and must be reversed. Judgment reversed.