Board of Supervisors v. Pindar , 3 Lans. 8 ( 1870 )

By the Court —

Miller, P. J.

The bond, recited in tho plaintiff’s complaint, was intended to conform to the provisions of the statute (S. L. of 1866, chap. 696, p. 1490), and if in substance as the statute requires is sufficient. I am inclined to thinkthat.it is a valid undertaking, and the action brought by the plaintiffs can be maintained. A strict and technical conformity to the statute is not essential to its validity; and to obviate objections of this character, the Revised Statutes (vol. 2, 556, § 33) provide that whenever a bond is required by law in the cases stated it shall not be necessary “ for such bond to conform in all rejects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conform, thereto, substantially, and do not vary, in any matter, to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given.”

I think it cannot well be denied that the bond is substantially in accordance with the statute which provided for its execution; and it is difficult to see how it varies from the statute to the prejudice of the plaintiffs’ rights to secure which it was executed.

The addition of a clause, by which the obligees are intended to be made liable to the comptroller, who has no right to the moneys, does not, in my opinion, constitute such a departure from the statute or increase the obligation so as to render it invalid. It is not material, and makes the bond no more onerous than it would have been if this additional clause had not been inserted. It is enough, if sufficient in substance, to secure to the party for whose benefit it was given, all his rights. (Foster v. Tyler, 7 Paige, 48.) It is no objection to the bond, that it was broader in its terms than was required, so long as no additional obligation is incurred; and it does not, in my opinion, rest with the treasurer, who has had the benefits of the office, and received the money, or his sureties, now to object to it because of the additional clause. (See Ring v. Gibbs, 26 Wend., 501; Franklin v. Pendleton, 3 Sandf., 572; Decker v. Judson, 16 N. Y., 443.) The fact that the condition is in the alternative, and provides that the treasurer shall account to the board of supervisors, or the comptroller, when required, does not leave it to the treasurer to take his choice, nor oblige him to account to anybody besides the plaintiffs. It is of no account whatever, and I think may be rejected as surplusage.

There is no force in the objection that the bond is void, ‘because it is taken colore officii. It is not a bond which comes within the provision of the statute on that subject, and the board of supervisors are not “ officers ” within its requireménts. (2 R. S., 286, § 59). The board of supervisors is a body of men organized for certain purposes provided by law. The bond of the county treasurer is to be given to and approved by them, and the statute last cited has no application to them as a body. The section cited is found under that division of the Revised Statutes which treats “ of the powers and duties of certain judicial officers.” (2 R. S., § 279.) Its object was to impose restraints upon a certain class of officers whose duties, in many respects, were similar to those of sheriffs, who were exposed to temptation; and it is not of universal application to all officers, and to all bonds. (Webb v. Albertson, 4 Barb., 52; Shaw v. Tobias, 3 Coms., 192; Ring v. Gibbs, 26 Wend., 509; Winter v. Kinney, 1 Comst., 365.) In no sense was the bond taken colore offidi within the meaning of that term. (Decker v. Judson, 16 N. Y., 442; Chamberlain v. Beller, 18 N. Y., 115; Burrill v. Acker, 23 Wend., 607.) In fact this bond was not taken by the hoard of supervisors at all. It was given or .executed to them, and they approved of it. It was the voluntary act of the treasurer and his sureties to enable the former to hold his office. In the cases to which we have been referred, to uphold the position that this bond was taken colore officii, the bonds in question were taken under entirely different circumstances from those now presented, and those cases therefore have no application. (People v. Meighan, 1 Hill, 298; People v. Locke, 3 Sandf. S. C. R., 443; Franklin v. Pendleton, 3 Sandf., 572, 573; Morange v. Edwards, 3 E. D. Smith, 414.)

The bond being valid, and taken substantially as required by law, the breaches alleged which negative its condition, and in addition state the details of the treasurers default in its performance are sufficient. Were it necessary to allege or prove, that the treasurer took the oath of office, the presumption of law is, as he entered upon the duties of his office, and continued to act as treasurer, that he performed his official duty and took the oath of office. It is of no consequence whether the treasurer took the oath of office or not, so long as he acted in that capacity, as the acts of officers de facto, are as valid so far as the public are concerned, as if they were officers de jure. (People v. Covert, 1 Hill; 674; Weeks v. Ellis, 2 Barb., 320; People v. Cook, 8 N. Y., 89.)

I think it was not essential to allege that the bond was forfeited, to the knowledge of the board of supervisors, or that the board had been required by the comptroller to put the bond in suit. The fact of the suit being brought, shows they had knowledge that the bond was forfeited; and in such a case ■it cannot, I think, properly be claimed, that the requirement of the comptroller under the statute was necessary. (1R. S., 370, §27.)

I am also inclined to think, that as the complaint is not demurred to upon the ground “ that the plaintiff has no legal capacity to sue,” that the question last discussed cannot be raised. The question which arises by the demurrer is, whether the plaintiffs have legal authority, not capacity, to sue, and this can only be presented on motion. The order appealed from must be affirmed with costs.

Order affirmed.