While the answer of the appellant admits, in the terms averred in the complaint, that, during the term of office of the principal, as supervisor of the town of Sullivan, large sums of money, raised and collected according to law, in and belonging to the town, came to his hands as such supervisor, it denies each and every other allegation of the complaint.
Issue is thus taken upon the averment that the principal in the bond, as supervisor, received the sums alleged to have been collected for the temporary relief of the poor, and for the improvement of the roads and bridges of the town; and the exception to the conclusion of law of the referee presents the question as to the liability of the sureties for these moneys upon the facts agreed upon, and as found by the referee. Evidently, the only matter in issue was as to the legal liability of the sureties for these specific sums of money, and the form of the issue, and of the exception to the report, fairly raises the question actually tried and decided. Ho point is made in this court upon the form of the bond. The condition is in strict conformity with the act pursuant to which it was given, and is for the faithful discharge by the principal of his duties as supervisor; and that “ he will well and truly keep and pay over and account,for all moneys belonging to his town, and coming into his hands as such supervisor.” (Laws of 1868, chap. 721, § 2.) The validity of the bond is conceded. The question is as to its interpretation. The only objection to the recovery is, that the moneys for which a recovery was
Overseers of the poor and commissioners of highways who, by law, are charged with the disbursement of the two sums of money for which a recovery has been had, are required, by statute, to give bonds, with sureties, with like conditions as that required by law of supervisors. (Laws of 1855, chap. 269 ; id., 1845, chap. 180, § 3.) By law, boards of supervisors are required to cause to be raised by tax and paid to the overseers of the poor all moneys for the temporary relief of the poor of towns, and this was the purpose for which one of the specific sums mentioned in the complaint was collected. (Laws of 1845, chap. 334, § 7.) A like direction is given to the supervisors in respect to moneys raised by tax for highway purposes, or the construction and improvement of the roads and bridges. They are to cause them to be collected and paid to the commissioners of highways. (1 R. S., 511, § 50 ; Laws of 1865, chap. 522) This embraces the other of the specific sums of money mentioned. The officers named are chai’ged with the receipt and disbursement of moneys raised for purposes within their respective official duties, and they and their sureties are liable to the public for the safe keeping and proper disbursement of all such moneys. The supervisor has no authority, under the law, to receive moneys, even in transit, raised by tax for the support of highways and bridges, or of the poor. Moneys raised for such purposes are expressly excluded from those which he is authorized to
The principal in the bond received, officially and as supervisor, precisely what the law authorized him to receive, and no more. The appellant, in becoming surety upon the official bond of the supervisor, must be supposed to have known the law and the limit and extent of the liability which was assumed. He undertook for the accounting for and paying over of the moneys which his principal was authorized to receive in his official capacity, and of which he was the disbursing agent for the town, and not for that of which he
Liabilities of sureties are strictissimi juris, and cannot be extended by construction or enlarged by the acts of others. (McCluskey v. Cromwell, 1 Ker., 593; Supervisors of Rensselaer County v. Bates, 17 N. Y., 242.) The surety might well undertake for the proper disbursement by the supervisor of the moneys collected for the general expenses of the town, but not be willing to assume an unlimited liability for moneys legally payable to the other officials of the town, and which could only come to the hands of the supervisor without authority of law, and with the keeping and disbursement of which he had no official connection. The voluntary assumption of new duties and additional responsibilities by the principal, with the assent and through the action of the board of supervisors, essentially changed the risk and contract of the sureties from that contemplated by law, and by them when they became sureties, if they are to be charged for the non-performance of those duties. This can not be done without the assent of the sureties. (Brown v. Macdonald, 3 Hof. L. Cases, 226.) Had the law been changed after
The judgment must be reversed and a new trial granted, costs to abide the event.
All concur; Miller, J., not sitting.
Judgment reversed.