Majority
p. 18Lewis R. Stegman, Resp’t, v. Henry S. Hollingsworth, App’lt. (Supreme Court, General Term, Second Department, Filed May 11, 1891 .)
Headnote
1. Bond—Consideration—LXck of seal no objection.A bond executed by an under sheriff with sureties upon his appointment to the office, conditioned for the faithful performance of his official duties, shows a good consideration, and the sureties are bound by his default, and cannot object to its want of a seal.
2. Under sheriff—No right to retain honey.
An under sheriff has no right to keep money for which the sheriff is liable until he is assured that the latter will pay it over to the proper party.
Appeal from a judgment and order of special term, Kings county, overruling a demurrer to the complaint.
Fernando Solinger, for app’lt; A. M. & G. Card, for resp’t.
—The paper set forth in the complaint rests upon a good consideration. It was given upon the appointment of Francis S. Hodgekinson as under sheriff of Kings county by the plaintiff, who was the sheriff. It recites that it is sealed but
p. 19
in fact it was not. It was not given for a past consideration but the entire official duty of the under sheriff thereafter was to be secured by it An agreement of indemnity is good by parole. The consideration was original and direct as between the-, sheriff and the defendant. The appointment depended on it and the promise rested on the appointment. The paper covered moneys received after the sheriff’s official term was ended. The business out of which the claim arises was placed in the sheriff’s hands and through him into the hands of the deputy sheriff. Code, § 184.
The surety was bound by a failure to pay over money even if the sheriff be not called upon to pay the same. Willet v. Stewart, 43 Barb., 98 .
The under sheriff has no right to keep the money for which the sheriff is liable until he is assured that the sheriff will pay it over to the party entitled thereto.
The judgment should be, therefore, affirmed, with costs.
Dykman and Pratt, JJ., concur.