This court held in Tillinghast v. Merrill (151 N. Y. 135) that a public officer having the custody of public moneys is liable unqualifiedly for the loss thereof, and that it is no defense to an action on the official bond that the money was lost without fault or neglect on the part of the officer.
The trial court in this action found that McBride, the village treasurer, had the custody and possession of the village hall fund, and rendered judgment in favor of the village for the amount of the bond with interest. This *96 judgment was reversed at the Appellate Division and the finding of the trial court as to the custody and possession of the funds by McBride was disapproved, and an affirmative finding was made “that the trustees of the village of Bath on or about October 20, 1911, by resolution, designated the George W. Hallock Bank as depository of the village funds. ” Such designation, the court held, took the case out of the strict rule of liability laid down in Tillinghast v. Merrill (supra).
I think there was no evidence to support the finding of the Appellate Division and that we must reverse the judgment appealed from. (Acme Realty Co. v. Schinasi, 215 N. Y. 495; Hall v. O’Brien, 218 N. Y. 50.)
The only evidence to uphold the finding that the trustees designated the Hallock Bank as the depository of the village funds is the letter from the bank to the village trustees of October 20, 1911, offering to pay the latter three per cent upon the moneys in the village hall fund, and the resolution of the trustees accepting the offer. I have quoted both of these papers in full in the foregoing statement of facts.
It seems to me quite clear that the letter and the reso • lution are utterly insufficient to sustain the determination of the Appellate Division. The law under which the village is incorporated (L. 1895, ch. 785, tit. 4, § 6) provides that ‘ ‘ The treasurer shall receive all moneys belonging to the village, and keep an accurate account of all receipts and expenditures, in such manner as the board of trustees shall direct. All moneys shall be drawn from the treasurer, in pursuance of the order of the board of trustees, by warrants signed by the president or presiding officer of the board, and countersigned by the clerk.”
There is nothing in this provision of the village charter which directs the treasurer where he shall keep the moneys belonging to the village, and the use of the word treasurer in the last sentence quoted from the statute indicates that the legislature had no intention to give such *97 direction. All the treasurer is required to do by the charter is to keep his accounts accurately and pay the village money on warrants duly issued b^ ‘fxJarcf1 ¿f trustees. His bond too was for the safe keeping of the village hall funds and for the keeping of accurate accounts.
Assuming that the board of trustees ^acf ^ower"1to designate a depository of village money^apdohñíií^.-ÍP require the treasurer to deposit the money according to such designation, they did not exercise ti^tpqpjqrj. ,.,,{^1
The trustees undoubtedly expected that-dke,-treasurer would leave the funds in the Hallock Bank where-'they would earn the interest specified in the iettSi1,' but‘i thdi‘e was nothing in the resolution that restráiné^’thp 'treasurer from depositing the funds elsewj;pj^/^',!l'^^^q|^r, was nothing more than an offer to pay ,ipt'£Test,inq:qd ffcjxe resolution was nothing more than an accept anee • > of uthe offer. The defendant, the treasurer, was1'-not ’-informed of either of them. >‘>ib»n»j <>t Hour.-i-bi-
It seems to have been a case in whiph'1 fhe1 i'fjanlc j If spl'f discharged the duties of village treasur^*,.^^’ tellers or employees- was perhaps put fqr>yard fq, hqlql, ,the office. The course of business in thedbank <iwit-hx reference to the village moneys shows that'' the< defendarit McBride held his office more or less 1 fóf&'áíity, 'btit though that be so, the court cannot exeinp^him'from th!e responsibility which he thus assumed,.’ro^-e ofjj^jpct liability laid down in Tillinghast v. Merill (supra) j .ip, ¡a very important one, and it should nott-ib^ -frittered -away in seeking to give relief in hard cases.'1 "'"í " l""1 .<i<>i-ndid
My conclusion is that the j udgm&if' fftiiii i it, t t ,t . t -iU'hvui iMTituiu -rp'l-nyd}. should be reversed and the judgment .tpf‘th^ trjial^cpuijt reinstated, with costs. , This conclu^ipp1)r¡qnp¡prs/i^ essary to consider the other questions.! raised bye the appellant. ifianabiv-) -xlt mint boil
Willard Bartlett, Oh. J., CHAáE111 OoLLtisp<and"OARdozo, JJ., concur; Hogan, J., abséhi íí-wl’" «wtimi-ib ->iii
T , . t i_ Judgment reversed, etc.