p. 880FLOYD, Supervisor, v. DUTCHER et al.Headnote
Statute oe Limitations—Action on Bond oe Overseers oe Poor.Code Civ. Proc. § 383, providing that an action against an officer for the nonpayment of money collected on execution must be brought within three years, does not apply to an action on the official bond of an overseer of the poor to recover money alleged to have come into his hands as such overseer.
Appeal from justice court.
Action by Theodore B. Floyd, as supervisor of the town of Shandaken, against Duane 0. Dutcher and George W. Lament, on the official bond of Dutcher, as overseer of the poor of the town of Shandaken. From a judgment of nonsuit, plaintiff appeals. Reversed.
Henry Griffith, for appellant.
Brinnier & ¡Newcomb, for respondent.
The plaintiff, as supervisor of the town of Shandaken, brought suit against the defendant Dutcher as the principal and the defendant Lament as surety upon the official bond of the former, as overseer of the poor of the town of Shandaken, alleging that in March, 1886, Dutcher was elected overseer of the' poor, and executed to the then supervisor the statutory bond conditioned for the faithful discharge of Ms duties, and the payment over
p. 881and accounting of all moneys that should come into his hands as such overseer; that he acted during the year succeeding his election, and failed to pay over moneys which came into his hands, judgment for which was demanded. The defendant Lament alone answered, admitting the execution of the bond, but alleging that no recovery could be had, inasmuch as more than three years had elapsed since its execution, and no action had been commenced upon it within that time, and thereupon moved for judgment. Judgment for the defendant was thereupon granted by the justice.
The three-years statute of limitations is not applicable. That applies to an action against a sheriff, coroner, constable, or other officer, for the nonpayment of money collected upon execution. Code Civ. Proc., § 383. It does not apply to an action upon the official bond of an overseer of the poor. The judgment of the court below was erroneous, and should be reversed. Judgment reversed, with costs.