Lewison v. Hoffman — 8 Misc. 583

Majority

p. 583

Benno Lewison, as Receiver, v. Louis Hoffman.

(New York Superior Court—Trial Term,

May, 1894.)

Headnote

Official reports of the treasurer of a benevolent society as to the amounts received by him are presumptive evidence as to the facts therein stated, and if unimpeached are conclusive upon the sureties on his official bond. Where, however, such treasurer has charged himself with a sum for which his predecessor was in default, and which he never received, the sureties on his bond cannot be held liable therefor.

A demand upon the treasurer is not necessary before suit against his sureties where such treasurer has absconded.

The action was originally commenced by the “ Order Ger-mania,” a benevolent corporation, against Johanna Weiss and Louis Hoffman, as sureties upon the official bond of John Weiss, the treasurer of the corporation, to recover moneys received by said treasurer and not paid over. Pending the action, Mr. Lewison was appointed receiver of the property and assets of the corporation, and was in his official capacity substituted as plaintiff. Johanna Weiss, one of the sureties, departed this life, and the action was continued against Louis

p. 584

Hoffman, the surviving surety. The main issue was as to the amount for which the surety was liable, and this depends upon the amount actually collected by the treasurer and not paid over by him.

M. Au&rbach, for plaintiff.

L. S. Goebel, II. O. Botty and E. W. S. Johnston, for defendant.

The “ Order Germania ” was created for benevolent purposes, and, although a private corporation, was fashioned after public corporations in this, that it had a treasurer, who, like the treasurer of a county, had certain official duties prescribed which he was bound to perform, prominent among which were the collecting, accounting for and paying over moneys received on behalf of the order. As is usual in cases of public corporations, it was likewise required of the treasurer here that he execute a bond, with sufficient sureties,' for the faithful performance of his official duties. These duties required him not only to receive moneys due to the order, but to account for and pay over all sums received. Like a county treasurer, he made reports to the order of the funds in his hands, and these reports, being made in the performance of his official duties, became evidence not only against the treasurer, but against 1ns sureties, for they had guaranteed the proper. performance of his official acts. See Bissell v. Saxton, 66 N. Y. 55 ; Shattuck v. Lamb, 65 id. 499; Board of Supervisors v. Bristol, 15 Hun, 116 ; 99 N. Y. 316 . In these cases it was held that the official report of the treasurer was competent, though not conclusive, evidence against the sureties. In Father Matthew, etc., Society v. Fitzwilliam, 12 Mo. App. 445 , it was held that the treasurer’s statement, made in accordance with his duty, and during the period covered by the bond, but after his removal for misconduct, is competent against his sureties, and is prima facie evidence of the facts therein stated.

In cases of this nature the main inquiry is whether the

p. 585

reports or declarations of the principal were made during the transaction of the business for which the surety was bound, so as to become part of the res gestee. If so, they are held admissible, otherwise not. 1 Greenl. Ev. § 187; 2 Brandt Surety. (2d ed.) 886, 887.

The reports of Weiss, the treasurer, were more than declarar tions of the principal forming part of the res gestee (see Wood’s Pr. Ev., § 146; Greenl. Ev., § 109); they were in the nature of official acts, the accuracy of which was guaranteed by the bond. The order acted on these reports, as it lawfully might, and, while it was in the power of the sureties to show any error in them, they constitute presumptive evidence of the facts therein contained, and, unimpeached, are conclusive not only against the treasurer, but his sureties on the official bond. The very duties of the office required the treasurer to charge himself with the amounts received from the different subordinate lodges, and to report the amount so received semi-annually to the grand lodge. Weiss, the treasurer, in the performance of these duties, made reports showing the amounts he received, and the amounts thus reported, having been returned and acted upon officially, became in the nature of accounts stated between the grand lodge and its treasurer, which, in the absence of fraud or mistake, are conclusive alike upon the lodge, its treasurer and his sureties. See Douglass v. How land, 24 Wend. 59 , cited with approval in Hatch v. Elkins, 65 N. Y. 498 ; Morley v. Town, 78 III. 394; 20 Am. Rep. 266 .

That this was in the contemplation of all the parties is apparent from the tenor, effect and nature of the bond itself, and effect must be given to this understanding. Illustrations of the effect given to the rule in different cases will be found in Bank v. Smith, 12 Allen, 243 ; State v. Newton, 33 Ark. 276 ; McKim v. Blake, 139 Mass. 593 ; Pendleton v. Bank, 1 T. B. Mon. 171 ; Lysaght v. Walker, 5 Bligh. N. R. 1; 2 Dow & Clark, 211.

The evidence shows that at the time the last official report was made Weiss owed the order $5,956.31. The plaintiff thereafter credited the account with $786.10, and with two

p. 586

items, one of $500 and another of $1,000, received from the sureties, leaving a balance of $3,670.21 due. ÍTo mistake was shown in the reports made ; nor was it shown that the moneys charged by the treasurer as coming into his hands did not, in fact, reach his custody. The court carefully excluded all declarations made by Weiss, the treasurer, except those made officially and as official acts at regular and stated meetings of the lodge, when his duties required him to make such reports and to make them officially. The evidence shows that' these moneys were never returned into the grand lodge, and that Weiss, the treasurer, absconded without rendering a proper account of his stewardship. The bond contemplated more than a mere accounting in writing ; it was given to insure the payment over to the order of the funds which came to the hands of the treasurer in his official character as such.

In interpreting the meaning of the bond the court has a right to consider all the surrounding circumstances—the relar tions of the pai’ties •— and to construe it with reference to the laws under which the officer was appointed. Baylies Sureties, 127. Where the bond is given for the faithful performance of the duties of an officer annually appointed, and it should happen that the same individual had held the same office under a prior appointment, and had committed defaults during the term of that appointment, the bond of the sureties given on his reappointment will not be construed to relate to past defaults, in the absence of special stipulations to that effect. Bissell v. Saxton, 66 N. Y. 55 ; Baylies Sureties, 127, 128.

It is claimed by the defendant, and there is some proof to sustain the contention, that the treasurer of the order who was succeeded by Weiss was $2,000 behind in his accounts, and that" this sum was charged against Weiss and forms part of the $3,670.21 claimed from him, and that the purpose of doing this was to conceal the fact of the deficit from the members of the order. While this testimony is not as satisfactory as it ought to have been, the court will, in order to prevent any possible injustice to the defendant, disallow this portion of the

p. 587

account, and direct judgment for the difference, $1,670.21, in respect to which there hardly seems to be any substantial ground for dispute. The sureties cannot, on any principle, be held for the misconduct of the predecessor of Weiss, and if he in any form charged himself with moneys which his predecessor failed to turn over to him, this circumstance cannot create a liability against his sureties. This seems to be a self-evident proposition.

The Code (§ 1891) provides that in actions on the official bonds of “ public ”• officers the plaintiff must prove a demand, “ or that a demand cannot be made with due diligence.” If a formal demand upon the treasurer of this private corporation was necessary (see Brandt Surety. § 200) before charging the sureties on his official bond, it could not have been made with due diligence, because the treasurer absconded and made such demand impossible. See Baylies Sureties, 134. Demand on the surety is admitted by the answer. The fact of the treasurer’s default was sufficiently proved, however, to call upon the defendant to prove that Weiss had accounted according to the terms of the bond.

The plaintiff is entitled to judgment for $1,670.21, with interest from the commencement of the action, and costs.

Cases cited

Bissell v. Saxton 66 N. Y. 55 N.Y. 1876-04-25 p. 584, p. 586
Board of Supervisors v. Bristol 99 N. Y. 316 N.Y. 1885-06-09 p. 584
Ladue v. Seymour 24 Wend. 59 N.Y. Sup. Ct. p. 585