Mayor of New York v. Ryan ( 1867 )

Davies, Ch. J.

It is not claimed that the duties theretofore incumbent, on such officers have been changed, but only that additional or new duties have been imposed. Neither is it claimed that the acts for which the constable has been made liable in the present case, by the judgment recovered against him, were done in pursuance of any authority conferred by the act of April 13, 1857.

It is quite clear that they were personal, and discharged .under and by virtue of the then existing provisions of law, and had. no connection whatever with the act of April 13, 1857.

The judge at special term held that;, after the bond in suit was given, the legislature, by the act of April 13, 1857, had enlarged the jurisdiction of the district courts and imposed new duties upon constables, and that when a surety enters into a bond for the faithful performance by his principal of the duties of an office, and after the giving of the bond the duties of the office are altered so as to increase or vary the risk of the surety, the bond cannot be enforced against the surety,, although the act relied upon as a breach of the condition "would have been a violation of the officer’s duty before the alteration was made.

This judgment was affirmed at the general term of the New York common pleas, and the plaintiffs appeal to this court.

The precise point raised by this appeal has lately been under consideration by this court, and been decided.

In the case of The People agt. Alden Vilas and others, decided at the last March term, we held precisely the opposite doctrine.

In that case the defendants became the sureties, on the 15th day of January, 1850, of one Mahlon P. Jackson, as commissioner for loaning certain moneys of the United States for the county of St. Lawrence.

On the 10th of April, 1850, the legislature imposed new obligations on the principal in the discharge of the duties of his office, and it was insisted that the sureties were consequently discharged.

This court thought otherwise, and held that the sureties were not discharged.

That case is decisive of the one now under consideration, and it is unnecessary to again discuss the question or again refer to the authorities which, we believe,- fully sustain the result at which we then arrived.

The judgment appealed from must be reversed and a new. trial ordered, costs to abide the event.

All concur except Portee and Bocees, Judges, not voting.

Reversed.