Majority
p. 210McROBERTS against WINANT. Supreme Court, Second District; Special Term, February, 1874. That the act of 1850, ch. 346, § 3, applies. The bond not being filed in time (act of 1850, § 1), the office was vacant (1 Rev. Stat., 5 ed., p. 413). The general statutes do not apply, as there is a different time prescribed (1 Rev. Stat., p. 411, § 25 and act of 1850), and even under the revised statutes the office is still vacant, the bond not having been filed until after January 15. McRoberts not having duly filed his bond, Winant’s sureties would be liable (1 Rev. Stat, § 34, p. 412), for turning over the papers to McRoberts.
Headnote
Statutes.—County Treasurer’s Bond.Statutes fixing the time for public officers to file official bonds are directory.
A county treasurer may file his'bond at anytime before entering upon the duties of his office.
Hugh McRoberts was elected treasurer of Richmond county in November, 1873, and took and filed his oath of office December 2 following. The annual meeting of the supervisors was held on October 25, 1873. The official bond of McRoberts was dated December 29, 1873, and acknowledged and delivered to the supervisors January 14, 1874. It was approved by them January 22, and was filed in the Richmond county clerks office January 23, 1874. On his application to his predecessor, Mr. Winant, possession of the -books and papers of the office was refused; and thereupon an order to show cause was obtained under the statute, why delivery should not be compelled.
S. F. Dawson, showing cause for Winant, argued :
p. 211That the act of 1866 (ch. 696),' prescribed no time, and that the bond might be filed at any time before entering upon the duties of the office—at all events, the statutes (1 Rev. Stat, p. 409, § 14), did not authorize Winant to hold over.
T. Westervelt, for McRoberts, argued:
Held that the statute must not be so construed as to defeat the will of the people as expressed at the election, and that the provision fixing the time for filing the bond might be held to be. directory. The bond having been approved by the supervisors, and filed in the clerks office, although after the time prescribed therefor, was a valid bond, and authorized McRoberts to take the office. That notwithstanding 1 Rev. Stat., p. 412, § 34, the defendant could not contest McRobert’s title, as he did not come within the statute authorizing officers to hold over.
Order for delivery of books, &c., granted.