It is too late at the trial to object that the complaint and summons vary; that the summons was under the wrong subdivision of the 129th section of the code of procedure to justify the present complaint under it. That objection should have been presented by motion, in order that an amendment might have been made on just terms. If necessary to sustain the judgment, it would be now amended, so as to conform to the facts proved.
The facts on which the recovery is based are wholly undisputed. The deputy of the sheriff of the city and county of ¡New York had, under and by virtue of executions issued and delivered to such sheriff, sold on the 13th of May, 1858, property of the defendants in the executions, to the amount of $516.95. This money he has kept, and not paid either to the sheriff or to any person who was entitled thereto. The defendant Perry is the surety of the deputy, and he, with the deputy and his co-surety, is sued by the sheriff upon the bond given by the deputy, conditioned that he would well and truly execute the office of deputy sheriff.
The defendants claim, first, that they are not liable because the sheriff was not sued to recover this sum until after three years from the time the money was made by the deputy, and that by section 92 of the code the action was barred by lapse *101of time. It was a breach of the deputy’s bond if he failed to pay money collected, even if the sheriff should never be sued or made to pay the amount. (McClure v. Erwin, 3 Cowen, 313.) The deputy’s liability depends solely upon his own omission to pay the sheriff, and not in any manner upon what becomes of the money after the sheriff receives it, or who is entitled to it.
[New York General Term, November 7, 1864The law declares the judgment from undisputed facts, There was nothing for a jury to find.
The judgment should be affirmed, with costs.
•Leonard, J. concurred.