The action was brought, pursuant to an order of this court, against James Faulkner and Henry J. Faulkner, to recover from them as sureties upon the official bonds of Samuel D. Faulkner, late surrogate of Livingston coi inty, certain moneys alleged to have been paid to him as such surro gate and not paid over or accounted for by him. The answer sets up and the trial judge found that such moneys were deposited by the surrogate with a banker, who, at the time of the deposit w¡ a in good credit and standing, but who was afterwards found to be insolvent, and by reason of his insolvency a part of said moneys was lost, without the fault or neglect of the surrogate. Sul sequently to the commencement of the action J ames Faulkner di< d, and the action was continued against James Faulkner, Jr., hit executor, and Henry J. Faulkner. The counsel for the appellants contends that the facts set' up in the answer and found by the court, as above stated, constitute a defense. At common law a public officer was liable only as bailee for negligence or malfeasance. (Lane v. Cotton, 1 Ld. Raymond, 646; Whitfield v. Le Despencer, Cowp., 754; Browning v. Hanford, 5 Hill, 588.) But the duties of a surrogate in respect to moneys received by him in his official < apacity, are prescribed by statute, as is also the condition of the be nd, which he is required to execute for the faithful discharge of hii duties. The bonds in the present case comply with the statute, . rnd contain the condition that the surrogate “ shall well and truly aid faithfully perform his duties as surrogate,” and “shall well an 1 faithfully apply and pay over all moneys and effects that may cone into his hands as such surrogate, in the execution of his office.” The moneys in question were the-proceeds of the sale of real est ate of a deceased person, made by the administrators, under an ord ir of the surrogate for the payment, of the debts of the deceased.
It has been held frequently in the federal courts, and in some of the sister States, that a bond with an unqualified condition to account for and pay over public momys, enlarges the obligation of the receiving officer and deprives hi m of defenses which are available
In the case of The United States v. Thomas (supra), Mr. Justice Bradley in his opinion, in which a majority of the court concurred, took a distinction between the absolute agreement to do a thing, and a condition to do the same thing, inserted in a bond; and he said in the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. In that case the court recognized the effect
The case of Muzzy v. Shattuck (supra) was placed not on the effect of the bond as enlarging 1 he liability of the officer, a town collector, but upon the provisior s of the statute defining his duties, which, it was held, made him a, debtor for the amount of the taxes received by him. The case seems to us irreconcilable with that of Dorr, in so far as the latter hold s that a bond executed in pursuance of the statute conditioned that tie officer shall account for and pay over moneys, etc., is but a recog aition of the common law liability of a bailee, and to that extent overrules it. But it does not hold, as do the Federal and other case 3 cited above, that the bond enlarges the liability of the officer and h s sureties. Nor are we,aware of any reported case in this State in which that point has been expressly adjudged, one way or the other. Nevertheless, we are prepared to adopt the doctiine s dvanced by the cases referred to, and to hold that the obligation to pay created by the bonds in suit, is not excused or discharged by ¿he facts alleged as a defense.
Even if we were to adopt the suggestion made by Mr. Justice TVTTT.-r.TiyB., in his dissenting opinion in United States v. Thomas (supra), that the bond does not < nlarge the obligations imposed upon the depositary by the statute, bu t is a mere security for their performance, we would reach the.conclusion above stated.
The Revised Statutes, under ' vhich the bonds in suit were executed, made it the duty of the surrogate to pay out, apply and distribute, in the particular manner there indicated, the money received by him upon the sale of the real estate of a deceased person. (2 R. S., 106, §§ 36, 37, 38.) Compliance with those provisions was expressly required fc y the condition of the bond. The payment over to the surrogate cf the proceeds of such sale had the effect to exonerate, pro tanto, ti e heirs and devisees of the testator or intestate, and all the remaining lands of which he died seized, from all claim or charge by rea- .on of the debts established before
It is urged that, as the surrogate is a judicial officer, it is not to be supposed that it was intended to subject him to the rigorous degree of responsibility imposed by statute, in many cases, upon collectors, receivers and other fiscal officers. The anomaly of making the surrogate the actual custodian of the funds paid into his court has been abolished by the Code, all such moneys being now required to be paid over to the county treasurer. (Code Civ. Pro., §§ 2537, 2788.) But so long as the duty of receiving and paying out the money was imposed upon the surrogate, we think that as to such <luty, and the obligations arising therefrom, he was on the same footing as if he had been a fiscal officer merely.
In regard to the certificate of deposit which was taken by the district attorney, acting in the place of the surrogate, and by him turned over to the surrogate, we think the defendants are liable. The surrogate received it from the district attorney as money, and there is no finding or proof that it was not good for its face when he received it.
The question whether the plaintiff can maintain this action was disposed of adversely to the defendants upon a former appeal. <31 Hun, 318.)
The result is that the judgment should be affirmed.
Judgment affirmed.