City of Mt. Vernon v. Brett

• Decision Date: 23 October 1908
• Citation: 193 N.Y. 276,86 N.E. 6
• Parties: CITY OF MT. VERNON v. BRETT et al.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 276

86 N.E. 6

CITY OF MT. VERNON

v.BRETT et al.

Court of Appeals of New York.

Oct. 23, 1908.

Appeal from supreme Court, Appellate Division, Second Department.

Action by the City of Mount Vernon against John H. Brett and others. From a judgment of the Appellate Division, Second Department (115 App. Div. 882,100 N. Y. Supp. 1110), affirming a judgment for plaintiff, defendants Andrew M. Kenlon and others appeal. Reversed, and new trial granted.

This action was brought to fix the amount due the plaintiff upon a bond given by John H. Brett, as principal, and his sureties, five in number, to secure the faithful discharge by him of the duties of his office as receiver of taxes and assessments of the city of Mt. Vernon, to establish the same as a lien upon certain real property belonging to the obligors when the bond was filed, and to foreclose the same. Brett made default, but various defendants answered, some of them alleging that they were subsequent purchasers or incumbrancers for full value, in good faith and without actual notice, of certain parcels of the land in question. John H. Brett was elected receiver of taxes and assessments of the city of Mt. Vernon on the 16th of May, 1898, for the term of two years, commencing on the 15th of June in that year. He took the oath of office prescribed by law on the 24th of May, and between that date and the 15th of June, when he entered upon the duties of his office, the common council fixed the penalty of his official bond at the sum of $25,000. The bond in question, dated and acknowledged on the 15th of June, was ‘accepted’ by the common council on the 6th of July, was filed with the city clerk on the 27th of July, and approved by the common council on the 2d of August, 1898. It was never filed in the office of the clerk of the county in which the city of Mt. Vernon is situated, and was neither recorded nor indexed by the city clerk, and no book was kept by him for either purpose. In May, 1900, Brett was re-elected to said office for the further term of two years, but he failed to qualify, or to give any bond for that term, although he continued to act as receiver until June 15, 1902, when his successor, who had been duly elected, qualified and assumed the duties of the office. Between the 15th of June, 1898, and the 14th of June, 1900, Brett, as receiver, collected taxes belonging to the city to the amount of $18,765.25, and converted the same to his own use. Between the 15th of June, 1900, and the 14th of June, 1902, he collected and converted the further sum of $5,592.55, and between the 11th of April, 1899, and the 14th of June, 1900, the sum of $717.09, but whether that sum was converted before or after June 15, 1900, does not appear. The trial justice found that Brett and his sureties owned 19 different parcels of land situate in the city of Mt. Vernon on the day that said bond was filed; that after that date, and before the notice of pendency herein was filed, all of said parcels were conveyed to certain of the defendants for full value, without actual knowledge and upon the usual searches made by attorneys, who failed to find said bond. Judgment was rendered, fixing the amount due on the bond at the sum of $25,000, with interest thereon from April 9, 1903, the date when the action was commenced, adjudging said sum a lien on each of said parcels of land, and directing that as many thereof be sold, in the inverse order of alienation, as would make the amount so found due, with costs and an extra allowance. The sureties, as well as the defendants, who claim to be subsequent lienors or purchasers for value, and without notice, appealed from said judgment to the Appellate Division, which affirmed the same, on its opinion rendered upon a demurrer to the complaint. Those defendants now come here.Joseph S. Wood and Odell B. Tompkins, for appellants.

J. Mortimer Bell, for respondent.

VANN, J. (after stating the facts as above).

The city of Mt. Vernon was incorporated on the 22d of March, 1892, by chapter 182, p. 355, of the laws passed in that year. By section 15 it is provided that every person elected or appointed to any office, before entering upon the same, shall be the oath of office prescribed by the Constitution, and that ‘every person so elected or appointed who neglects, for fifteen days after his election or appointment, to give the bond or security required by law, or by the common council under this act, or to take and file said oath of office, shall be deemed to have declined the office, and it shall be vacant.’

Other sections, regarded as material on this appeal, are as follows:

‘Sec. 16. Every officer shall hold his term of office until his successor shall have been elected or appointed, and shall have qualified, unless his office has become vacant, as provided in this act.’

‘Sec. 27. The receiver of taxes and assessments shall hold office for two years. Before entering upon the duties of his office he shall enter into a bond to the city of Mount Vernon in such penal sum as shall be fixed by the common council, but which shall not be less than twenty thousand dollars, which bond must be approved by the common council and filed in the office of the city clerk.’

‘Sec. 44. The receiver of taxes and assessments within fifteen days after his election, shall make and execute as such a bond to the city of Mount Vernon, with sufficient sureties, who shall be freeholders within and residents of the city, in a penal sum of twenty thousand dollars, conditioned for the faithful discharge of his duties, and that he will account for and pay over all moneys received by him as such receiver, which bond must be approved by the common council and filed with the city clerk before he enters upon the duties of his office. Such bond shall be a lien upon the real estate of the said receiver and his respective sureties, until canceled and discharged. The salary of the receiver of taxes and assessments shall be at the rate of two thousand dollars per year.’

The following is a copy of the bond in question: ‘Know all men by these presents: That we, John H. Brett, as principal, and Andrew M. Kenlon, Patrick H. Sharkey, John J. Fay, Henry Palm and Peter Sheridan, as sureties, are held and firmly bound unto the city of Mount Vernon in the penal sum of twenty-five thousand dollars, to be paid to the said city of Mount Vernon for which payment well and truly to be made we jointly and severally bind ourselves, our and each of our heirs, executors and administrators firmly by these presents. Sealed with our seals, and dated the 15th day of June in the year of our Lord one thousand eight hundred and ninety-eight. Whereas, the above bounden John H. Brett, has lately been elected to the office of receiver of taxes and assessments of the city of Mount Vernon. Now the condition of the above obligation is such, that if the said John H. Brett as receiver of taxes and assessments shall well and faithfully discharge the duties of his office and account for and pay over all moneys received by him as such receiver then the above obligation to be void, else to remain in full force and virtue.’ Such bond at the date thereof was signed, sealed, and acknowledged by the obligors therein named.

It is unnecessary for us to decide whether the Legislature intended that two bonds should be given, one under section 27, and the other under section 44, or whether it meant that the common council should elect under which section the bond should be drawn, for the bond in question, as we think, was given under the earlier section only. When read in connection with the public officers' law, to which we shall presently allude, it substantially conforms to section 27, but, whether read with or without that act, it fails to conform to section 44. It was given before the receiver entered upon the duties of his office, in the penal sum of $25,000, which had been duly fixed by the common council. It was approved by that body 48 days after the receiver entered upon his duties, and filed with the city clerk 42 days after that date. Section 44 requires that the bond shall be given within 15 days after the election of the receiver, in the penal sum of $20,000, and approved by the common council, and filed with the city clerk before the receiver enters upon the duties of his office. ‘Such bond,’ as that section further provides, ‘shall be a lien upon the real estate of the said receiver and his respective sureties until canceled and discharged.’ The bond in question was not given by the receiver within 15 days after his election, but it was given before he entered upon the duties of his office. It was not given in the penal sum of $20,000, which is unalterably fixed by the Legislature in section 44, but was given for the sum of $25,000, the amount fixed by the common council, pursuant to the authority of section 27, which does not name the penalty, but authorizes the common council to determine it, subject to the limitation that it cannot be for a sum less than $20,000. It is further to be observed that section 27 provides for a bond which must be filed in the office of the city clerk without specifying the time, while section 44 requires a bond that must be filed before the receiver enters upon the performance of his duties. Section 27 contains no provision that the bond shall be a lien upon the lands of the bondsmen, while section 44 makes the bond a lien upon the real estate of both principal and sureties until it is canceled and discharged, although there is no provision that the lien shall be specified in the bond itself.

To summarize the chief differences, the bond was given for $25,000 as authorized by section 27, and not for $20,000, as required by section 44. It was executed on the 15th of June, the day when the receiver assumed duty, as provided by section 27, but not within 15 days after his election, as...