Mayor of New York v. Ryan — 35 How. Pr. 408

Majority

p. 408

COURT OF APPEALS.

The Mayor, Aldermen and Commonalty of the city of New York, appellants agt. Michael Ryan and others, respondents.

Headnote

Where an act is passed by the legislature, after the execution by a constable in the city of New York and bis sureties of an official bond, which enlarges the jurisdic* tion of the district courts in said city and imposes new duties upon the constables, neither the sureties nor the bond are affected by such act.

September Term, 1867.

The defendant Ryan was sued in the New York common pleas, as the surety of one Libberus, a constable of the city of New York. It is provided by the laws relating to that, city (2 Rev. Laws, 397, § 147), that every person thereafter to be elected or appointed to the office of constable or marshal, in said city, should, before he entered upon the execution of said office, enter into a bond, with one or more surety or sureties, in the penal sum of $500, jointly and severally to answer to the said mayor, &c., and the parties, if any shall complain, and conditioned that such officer shall in all things perform and execute the duties of said office.

The complaint alleged that Ryan gave the bond referred to on the 14th day of January, 1857, and that on the 8th day of May, in the said year, the defendant Libberus, as constable, received two executions against the persons therein named; that by virtue thereof he took and carried away, on the 9th of May, 1857, the property of one John Rodman, Jr., and detained the same; that Rodman brought an action against him therefor, and recovered judgment for the value of said goods, &c., to the amount of $83.25; that an execution had been issued on said judgment, and had been duly returned unsatisfied.

On the 13th day of April, 1857, an act was passed to reduce the several acts relating to the district courts in the

p. 409

city of New York, into one act, and by this act additional duties were imposed upon the constables of said city.

J. S. Caepentieb, for appellants.

E. T. Rice, for respondents.

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.

p. 410

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.