Reilly v. Dodge — 38 N.Y. St. Rep. 352

Majority

p. 352

John Reilly et al., Ex’rs, App’lts, v. Rufus Dodge et al., Resp’ts.

(New York Superior Court, General Term,

Filed April 6, 1891.)

Headnote

1. Sheriffs—Sureties on bond of deputy—Notice of withdrawal.

A bond for the faithful performance of his duty by a deputy sheriff is in legal effect one to the sheriff individually and not officially, and notice by a surety that he declines to be longer bound, if valid for any purpose, must be made so by service on the sheriff personally. Service on the. ■under sheriff is not sufficient.

2. Same—New bond.

The sureties on a. deputy’s bond are discharged by the acceptance of a. new bond, but only from the time of such acceptance.

3. Same.

A notice by the under sheriff to the deputy that the latter should receive no new business does not operate to prevent him from using and exercising his office of deputy, and does not discharge his sureties from liability.

Appeal from judgment entered upon the report of a referee-appointed to hear and determine the whole issues.

Action upon an official bond of the defendant Dodge as deputy sheriff. Defendants claimed to be released from liability by reason of a notice served by defendant McDermott, and the acceptance of a new bond by the sheriff. -

Frederick Hemming, for app’lts; Louis M. Doscher, for Dodge and Sauer, resp’ts; W. W. Westervelt, for McDermott, resp’t.

There is no evidence that the plaintiffs’ testator, Bernard Reilly, was notified prior to the commission of the acts complained of that McDermott declined longer to be a surety. Service of the notice upon the under-sheriff was not service upon

p. 353

the sheriff. Section 56, art 2, tit 2, chap. 3, part 3, does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose, it can only be made so by service upon the indemnified individually and not as an official, for in legal effect the bond was to Bernard Reilly, not to Bernard Reilly as sheriff.

The acceptance of the bond of February 5th certainly discharged the former sureties, but this discharge was only operative from the date of the acceptance of the later bond.

The condition of the bond in suit is that if the defendants keep harmless Bernard Reilly touching the execution of such orders, etc., as shall be delivered to the defendant Rufus Dodge during the time the said Dodge “ shall, or may, by virtue of the warrant aforesaid, use or exercise the * * * office of deputy sheriff,” the bond shall be void, otherwise not, etc.

The action of the under-sheriff in notifying Dodge that he should receive no new business, did not operate to prevent Dodge from using and exercising the office of deputy sheriff by virtue of the warrant, for it was, in fact, while he was exercising the office that the acts complained of were committed. The exercise of the office of deputy by Dodge was always more or less controlled by the sheriff, and always properly limited by the business assigned him.

It was stipulated that if the sureties should be determined to be generally liable upon the bond, the amount of the recovery should be the sum of $985.02, with interest from June 6, 1885'; the liability of the defendant Dodge to follow the stipulation as to amount.

The sureties were liable generally upon the bond, and the plaintiffs were entitled to judgment accordingly.

Judgment reversed, order of reference vacated, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Truax, J., concur.