It is conceded by the city that the funds deposited with Fox were not pubhc funds. They were at all times the private property of the inmates, being held by the warden during the confinement of the owners. Upon requisition of the inmates, disbursements were made therefrom for their private purposes. At all times the inmates had partial control of such funds by being able to draw upon such deposits for private purposes, the warden being merely held responsible to turn over to such inmates upon their discharge any balance remaining after the disbursements asked by the inmates had been made. There is no claim of neghgence on the part of the warden, and the case involves the sole question as to whether or not the warden is hable as an insurer for all sums of money so deposited with him for safekeeping by the inmates.
Upon the trial the learned trial court excluded .all evidence respecting the theft, and held that the warden was absolutely hable for ah moneys so left with him.
The appellants rely upon the case of People ex rel. Nash v. Faulkner (107 N. Y. 477) as authority for the proposition that where funds not of a public nature are paid to a pubhc official, such pubhc official is not in such case an insurer. In that case (People ex rel. Nash v. Faulkner) certain funds came into the hands of the defendant’s intestate, who was a surrogate. Such funds were court funds and were deposited by the surrogate with one Cone, a banker. The surrogate had given a bond for the faithful performance of his duties which seems to be as strong as the one given by the defendant bonding company in the instant case. The Court of Appeals held, Judge Earl writing the opinion, that the money being lost *446without the fault or negligence of the surrogate, the surrogate could not be held responsible therefor. In referring to an apparently contrary rule, adopted in other jurisdictions, to that stated in the case under considerations, Judge Earl said: “ But whatever the rule may now be in the Federal courts, and in many of the other States, it is not the settled law of this State that public officers who have given bonds for the faithful discharge of their official duties, become debtors for the public moneys which come into their hands in their official capacity, and are absolutely liable for such moneys although lost without their fault or negligence.” (p. 485.)
“ When a case arises against an officer for not paying over and accounting for public moneys intrusted to him in his official capacity, it will be necessary to determine whether his liability in the absence of statutes specially defining it, shall be governed by the common law, or whether the broad and more rigid rule of responsibility laid down in the cases above referred to shall be enforced in this State.” (p. 487.)
The Faulkner case is cited in Bruen v. Gillet (115 N. Y. 17) and in reference to that case Judge Peckham said: “ There we held that a surrogate to whom moneys had been paid belonging to an estate and which had been by him deposited in good faith with a private banker in good standing and credit, doing a general banking business, pending proceedings to determine the parties entitled to such moneys, was not responsible for the failure of the banker and consequent loss of the funds before the determination of such proceedings, and while the moneys remained with him.”
The Court of Appeals has held otherwise in respect to public funds, and the cases are very learnedly reviewed by Judge Bartlett in Tillinghast v. Merrill (151 N. Y. 135), which is the leading case and the one in which the law was finally settled. ’An early case in this State wherein the question of the liability of a public official for public moneys paid to him was up for review was that of Supervisors of Albany County v. Dorr (25 Wend. 440). Dorr was a county treasurer and received as such official certain public moneys. Such moneys were stolen from his office without any negligence on his part. The question came up on demurrer, Chief Justice Nelson and Justices Bronson and Cowen holding that a public *447official intrusted with the receipt and disbursement of public moneys or funds cannot be held responsible for such moneys or funds when actually stolen from his office without any negligence or fault on his part. The case was appealed to the Court of Errors, where the judgment was affirmed by an equally divided court. (7 Hill, 583.) While the same question was considered in Muzzy v. Shattuck (1 Den. 233), the decision in the Dorr case was not overruled, as has often been claimed. The rule, as laid down in the Dorr case, remained unchanged until the decision of the Court of Appeals in Tillinghast v. Merrill (supra). In the last-mentioned case, Merrill, who was supervisor of his town, held certain school moneys paid to him by the county treasurer for the purpose of disburse-' ment. He deposited such money with a firm of private bankers' to his credit as supervisor. The banking firm failed and the money was lost. Action was brought by Tillinghast, as county treasurer of the county of Madison, to recover the moneys thus lost, and judgment was obtained therefor against Merrill. On a review of the judgment in the Court of Appeals, Judge Bartlett in his opinion said: “In the case of an officer disbursing the public moneys much may be said in favor of limiting his liability where he acts in good faith and without negligence, and a strong argument can be framed against the great injustice of compelling him to respond for money stolen or lost while he is in the exercise of the highest degree of care and engaged in the conscientious discharge of duty. When considering this side of the case it shocks the sense of justice that the public official should be held to any greater liability than the old rule of the common law which exacted proof of misconduct or neglect.
“It is at this point, however, that the question of public policy presents, and it may well be asked whether it is not wiser to subject the custodian of the public moneys to the strictest liability, rather than open the door for the perpetration of fraud-in numberless ways impossible of detection, thereby placing in jeopardy the enormous amount of the public funds constantly passing through the hands of disbursing agents.”
The rule, thus, for the first time, adopted by the Court of Appeals, seems to have followed earlier decisions of the United States Supreme Court with reference to the loss of *448public funds. (United States v. Thomas, 15 Wall. 337; United States v. Prescott, 3 How. [U. S.] 578.)
Tillinghast v. Merrill was followed by the Court of Appeals in Village of Bath v. McBride (219 N. Y. 92) and in Yawger v. American Surety Co. (212 id. 292). But in both of said cases public moneys and not private moneys were involved.
_As to public funds, it seems to be now the well-established rule, both of the courts of this State and of the United States, that a public official having custody of such funds is an insurer thereof and is personally responsible for their loss.
In the case at bar, however, the defendant Fox was simply the custodian of the funds of private individuals. The funds which came into his hands were not of a public nature, and still remained under the control of the inmates of the institution, being at all times subject to disbursement upon their requisition. The warden occupied no more confidential relation nor did he owe any greater duty to the general public than any court clerk or official, referee or receiver into whose hands moneys belonging to a litigant are ordered to be paid.
As above stated, Judge Bartlett, in Tillinghast v. Merrill, very frankly states that “ it shocks the sense of justice that the public official should be held to any greater liability than the old rule of the common law,’-’ and it is apparent that the Court of Appeals adopted the rule above set forth with reference to public funds only as a matter of public policy. We do not think the rule should be extended beyond the point indicated by the court in that case. To hold that a public official is in any case an insurer in respect to private funds left in his care would be extending the rule beyond the point thus far indicated by the Court of Appeals.
In the instant case there is no allegation of negligence or fraud on the part of the defendant Fox, and we think that the doctrine enunciated in People ex rel. Nash v. Faulkner should be applied, and that the rule laid down in Tillinghast v. Merrill should not be extended.
It follows that the judgment appealed from should be reversed, and the complaint dismissed, with costs.
Dowling, J., concurred.
Judgment affirmed, with costs.