Gottsberger v. Smith — 12 N.Y. Super. Ct. 566

Majority

p. 566

John G. Gottsberger, Jr., and John F. O’Neil, administrator, &c., of Francis O’Neil, v. George J. Smith, James B. Taylor, and Charles B. Swords.

Headnote

A. was appointed, by a Surrogate, administrator, ad colligendum, pending a contest upon a will. He employed B., as his agent, to collect the moneys of the estate. Subsequently, B. was appointed administrator, ad colligendum, in the place of A. At that time, B., as agent, had a sum of money in hand, collected for A. Upon passing the accounts of the latter, he was charged with such sum, and B. gave him a receipt for the same; whereupon, A. was credited such amount. B., upon being appointed, gave the usual bond, with the defendants Taylor and Swords as his sureties, conditioned, among other things, to account for all money, property, and things in action, received by him as such collector, whenever required, &c.

Held, that the sureties were responsible for the money thus collected by B., as agent, and comprised in his receipt to the former collector, A.

Held, by Hoffman, Justice, that if the moneys had been in his hands, as a debtor to the estate, when he was appointed collector, the sureties would have been responsible, reserving to them the right to prove that the debt of the principal— the collector—was desperate, as he could have proven that the debt of a stranger was not collectable.

(Before Oaklet, Ch. J., Hoffman and Slosson, J.J.)

May, 1856.

p. 567

Appeal from, a judgment, entered, upon the direction of a Judge at Special Term trying the cause without a jury, with a stay of proceedings until the decision.

The action is brought by the plaintiffs, as administrators, with the will annexed, of Francis O’Neil, deceased, to recover the sum of $1,397.97, and interest from February 17th, 1853, alleged to be due to the estate of said O’Neil, from George J. Smith, the defendant, a former administrator, ad colligendum, of the estate. The action is upon the bond given by said Smith, upon his appointment as such administrator, with the other defendants as his sureties. Such bond has been duly assigned to the present plaintiffs, administrators, with the will annexed.

Pending a contest before the Surrogate of New York, as to the will of one Francis O’Neil, Thomas S. Henry, was appointed administrator, ad colligendum, on the 1st of May, 1847. He continued in such office until the 16th of February, 1850; during all which time George J. Smith, the defendant, was employed by him, and acted as his agent, in the collection of the rents of the leasehold property, of which the estate principally consisted.

On the 15th of February, 1850, these letters to Henry were revoked, and special letters, ad colligendum, issued to the defendant Smith. Thereupon, such defendant executed a bond to the people, with Swords and Taylor, the other defendants, as his sureties, in the penalty of $10,000, conditioned as follows: “That if he, the said George J. Smith, should make a true and perfect inventory of such of the assets, of the said deceased, as should come to his possession or knowledge, and return the same, within three months, to the office of said Surrogate, and should faithfully and truly account for all property, money, and things in action, received by him as such collector, whenever required by the said Surrogate, or any other court of competent authority, and faithfully deliver the same to the persons who should be appointed the executors or administrators of the said deceased, or to such other persons as should be authorized to receive the same by the said Surrogate, then the said obligation should be void; otherwise, to be in full force and virtue.”

Smith continued to act as such collector until the 11th of January, 1851, when letters of administration, with the will annexed, were issued to the present plaintiffs.

p. 568

Previous to his appointment, the said Smith, as agent of Henry, had collected, from the leasehold premises, rents to the amount of $1,086.90, which he had not paid over to the said Henry, but was his debtor to that amount. After his appointment, and upon Henry’s accounting, Smith, at the request of Henry, gave him a receipt for the said sum of $1,086.90.

On the 23d of September, 1850, Henry rendered his account to the Surrogate, upon citation, and was, thereupon, decreed to pay over to George B. Smith the assets, remaining in his hands as collector.

Upon the appointment of the plaintiffs as administrators, they cited Smith before the Surrogate, who rendered his account, in which he charged himself, as such collector, with the said sum of $1,086.90, so collected by him as agent, and as having been received by him from Henry.

On the 17th of February, 1853, a decree was made by the Surrogate, declaring that the whole amount of assets which had come into Smith’s hands was $3,059.49, in which was included the said sum of $1,086.90, collected by Smith as agent of Henry; that the balance- in his hands was the sum of $1,397.97, and adjudging him to pay that balance, with interest, on such 19th of February, 1853.

Of these proceedings, the sureties had notice.

■ An execution against Smith was returned, unsatisfied, previous to the com'mencement of the present action. The court, at the trial, decided, that the plaintiffs were entitled to judgment, against all the defendants, for the sum of $1397.97, with interest, amounting, in the whole, to the sum of $1,683.37.

To which decision, the defendants Taylór and Swords excepted; and, thereupon, judgment was rendered for the plaintiffs, for the said last-mentioned amount, with costs.

The sureties insist, that they are not responsible for the said sum of $1,086.90.

D. D. Field, for the plaintiffs.

E. W. Stoughton, for the defendants, Taylor and Swords.

The case has been presented in two aspects. First: That the sureties are clearly bound by the

p. 569

terms of their bond, for the $1086.90, receipted for by Smith, even if the question is an open one. Next: That the decree of the Surrogate, charging Smith with the amount, is conclusive upon them.

First. The obligation of Smith was, to account for all money, property, or things in action received by him as collector. The sureties covenant that he shall do this. The money in question was, in contemplation of law, in Henry’s hands. He was chargeable with it; and, doubtless, was charged with it upon passing his accounts. On his accounting, he discharged himself by the receipt for the amount given by Smith, as the new collector, to him. Henry was adjudged to pay such amount to Smith. The decree, then, on the assumption that Henry had the money, was a chose in action, vested in Smith, for which he was to account. When the receipt was given, the money, legally in Henry’s hands, was received by Smith from him as collector. In legal intendment, it could not have been received in any other capacity.

In Saunders, and others v. Taylor, (9 Barn. & Cress. 95,) the defendant was surety in a bond given by one Hutchins. The latter had been appointed collector of rates by the commissioners of sewers. The bond in question recited, that he would be entitled to receive several rates and assessments; and the condition was, to account and pay over to the commissioners for the time being, all such sums of money as he had already received, or should thereafter receive by virtue of any rates, for, or on account of, the commissioners. The plaintiffs were appointed commissioners on the 3d of March, 1826, and the bond was dated the 20th of May, 1826. The collector had been also collector under an appointment by prior commissioners, and as such, had received rates, which were in his hands at the date of his present appointment. It was held, that the present commissioners were, of course, entitled to the rates collected before their-appointment; the reappointed collector was responsible to them, and that a bond conditioned for the discharge of the duties of a reappointed collector, would not be applicable to the whole duties of his office, if confined to a rate made and collected under the commission in force at the time of his appointment. The language might require, indeed, a more limited construction.

The court then examined the language of the bond, and con-

p. 570

eluded, that it extended to all moneys received by Hutchins as collector, by virtue of any rate fixed by any commissioners of sewers.

It must be noticed, that counsel contended, that the words, already received, were satisfied by covering moneys received between the 3d of March, when the existing commissioners, the plaintiffs, were appointed, and the 26th of May, the date of the bond. The cases of collector’s bonds, which have been referred to by the defendants’ counsel, proceed upon the ground that the term of office being prescribed by law, the obligation of the surety is solely to respond for acts or neglects during that period. It is simply that he hath performed his duties faithfully, that is, from the date of the next preceding appointment to that of the bond, and will perform them faithfully, that is, from the date of the bond to the expiration of the term. (See United States v. Eckford's Executors, 1 How. 258 .)

The case of Ketson v. Julian, (30 Eng. Law & Eq. Rep. 329,) is to the same effect. Where the limited period of an appointment appears in a bond, or is shown in a pleading, the responsibility of a surety is restricted to that period, unless otherwise expressly provided.

But no question of a responsibility for former acts as a former collector arises in this case. The question is, whether the acts done, or facts occurring while he was actually collector, make his sureties liable.

In the case of The Governor v. Lee, ( 4 Dev. & Bat. 457 ,) claims were put into the hands of a constable, during one particular official year, and remained in his hands uncollected during a subsequent year, for which he was reappointed. In an action against the sureties of the constable on his bond of the second year, it was held, that they were liable. His committing a breach of the prior bond, by neglect to collect, could not exempt his sureties from a liability for a continued neglect during the ensuing year.

Indeed, in my opinion, this case might be rested upon the simple ground, that if Smith had been appointed collector, owing money to the estate, the sureties would prima facie be responsible for the due application of the amount. The debt' would be assets. All that justice would require, would be, that they should have

p. 571

the same right to prove, in their discharge, that the debt was desperate at the time of their bond, as their principal would have to prove that the debt of a third person was not collectable.

In relation to the other point, viz.: the effect of the Surrogate’s decree, our decision renders it unnecessary to pass upon it. Judgment for the plaintiffs affirmed, with costs.