Tillinghast v. Merrill

• Decision Date: 01 December 1896
• Parties: TILLINGHAST, County Treasurer, v. MERRILL, Supervisor, et al.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 135

45 N.E. 375

TILLINGHAST, County Treasurer,

v.MERRILL, Supervisor, et al.

Court of Appeals of New York.

Dec. 1, 1896.

Appeal from supreme court, general term, Fourth department.

Action by George T. Tillinghast, as county treasurer of the county of Madison, against J. Herman Merrill, supervisor of the town of Stockbridge, and others. From a judgment (28 N. Y. Supp. 1089) affirming a judgment for plaintiff, defendants appeal. Affirmed.

Gray, J., dissenting. 28 N. Y. Supp. 1089 , affirmed.

Henry B. Coman, for appellants.

John E. Smith, for respondent.

BARTLETT, J.

The defendant Merrill, while supervisor of the town of Stockbridge, in the county of Madison, deposited with a firm of private bankers, to his credit as supervisor, certain of the public moneys in his hands. The banking firm afterwards failed and the money was totally lost. This action was brought by the county treasurer to recover the money of Merrill and his bondsmen, upon the theory that Merrill, on receiving the money, became the debtor of the county, and that the deposit of the same was at his own risk. The trial judge found that Merrill acted in good faith and without negligence in all that he did in the premises. Under these circumstances the learned counsel for the defendants has urged, with much earnestness and ability, that a superivisor rests under the common-law liability, whereby he was bound to exercise good faith and reasonable diligence in the discharge of his duties, and is not responsible for any loss of money which came to his official custody, occurring withoutfault on his part; that proof of the failure of the banking firm, where he had deposited the money in good faith and without negligence, is a complete defense to this action. The trial judge and general term have found against the defendants, and it remains for this court to determine which measure of liability is to be applied to a supervisor under the circumstances stated.

The question is an open one in this state, and, as the case at bar presents a claim against a supervisor who acted in good faith and without negligence, we are permitted to consider and decide this appeal upon general principles, and in the light of public policy. It is rather remarkable that, in a great business state like New York, this question should not have been decided long since by the court of last resort. In 1841 the case of Supervisors v. Dorr, 25 Wend. 440, came before the supreme court, composed of Chief Justice Nelson and Justices Bronson and Cowen. Dorr was county treasurer, and had given a bond to faithfully execute the duties of his office, and pay according to law all moneys. The declaration was on the bond, alleging breaches in not paying over, and in not accounting. Dorr pleaded that the identical money received by him was stolen from his office without negligence on his part. To this plea the plaintiff demurred. Chief Justice Nelson, delivering the opinion of the court, stated that the question was ‘whether an officer concerned in the receipt and disbursement of the public funds is an insurer of the same, ex virtute officii, while they necessarily remain in his custody.’ He then stated that ‘the principle was decided in favor of the defendant in Lane v. Cotton, 1 Ld. Raym. 646, and subsequently confirmed in Whitfield v. Le Despencer, 2 Cowp. 754, and is in conformity with the general rule, of daily application, that, in order to subject the officer, it is necessary to prove misconduct or neglect in the execution of his duties.’ Justices Bronson and Cowen concurred. An appeal was taken to the court of errors, and that court equally divided upon the question, the effect of which was to affirm the judgment below, and the case stands with no more force as a precedent than a unanimous opinion of the supreme court. Chancellor Walworth, in the court of errors, wrote for affirmance, thus adding his name to those of the distinguished justices of the supreme court who had decided to limit the liability of a public officer by the rule of the common law.

It has been a mooted question whether this case was overruled by Muzzy v. Shattuck, 1 Denio, 233, decided in 1845. Mr. Hill, in his note to Supervisors v. Dorr, in court of errors (7 Hill, 584), says that in Muzzy v. Shattuck the law seems to have been settled, and properly, directly the other way. On the other hand, Judge Earl, in People v. Faulkner, 107 N. Y. 486, 14 N. E. 415, 418, in referring to Supervisors v. Dorr, says: ‘The doctrine of that case has been erroneously supposed to have been overruled by the decision in Muzzy v. Shattuck. In the latter case the action was upon the official bond of a town collector, and the defense was that the money was stolen from him. It was held that the defense was not good, the supreme court then being composed of Chief Justice Bronson, and Justices Beardsley and Jewett; and Bronson, who concurred in the prior decision, also concurred in this, without any indication that he had changed his views. The prior decision was referred to in the opinion of the court, but not criticised or disapproved. This decision was based, not upon the common law, and not upon the force and effect of the official bond given by the collector, but upon the statutes defining the duties and liabilities of the collector; and the court held that by those statutes he was made an absolute debtor for the money collected by him, and that the fact that the money was stolen, therefore, constituted no defense.’ The learned judge, after a further elaboration of his views as to Supervisors v. Dorr, reaches the conclusion that, in view of the decisions of the federal and state courts, the case should probablynot be regarded as binding authority in this state, and that the question therein decided is an open one. He also held that it was not necessary to decide the question in the case in which he was writing, as the money received by the defendant surrogate was not public money, but belonged to a private estate, or to individuals. It, therefore, comes to this, that for 45 years the case of Supervisors v. Dorr, 25 Wend. 440, has stood without being directly overruled by any case in this state, and the rule of the...