Opinion
March, 1905.
Samuel I. Frankenstein for plaintiff.
John J. Clancy for defendants.
This is an action against the sureties on the official bond of a city marshal of the former city of Brooklyn. The bond was that the marshal "shall faithfully discharge the duties of his office, and shall promptly account for and pay over all moneys or property received by him as officer in accordance with the law." This was in accordance with the terms of the city charter (Tit. 3, sec. 4), and of the statute substituting marshals for constables (Laws of 1896, ch. 1000).
The complaint alleges that the marshal levied upon and took goods of the plaintiff under an execution issued to him against the property of another person. It must be deemed as settled in this state that an officer and his sureties are liable in damages on a general clause in his bond "for the faithful discharge of his duties," or equivalent general words, for a levy on the goods of one person under an execution or other process against the goods of another person (People v. Schuyler, 4 N.Y. 173; Berry v. Schaad, 50 A.D. 132; Fohs v. Rain, 39 Misc. 316). In People ex rel. Comstock v. Lucas ( 93 N.Y. 585), the words of the bond were not general, i.e., for the faithful performance of the duties of the office, but restricted, and it was only held that they were too restricted to support an action like the present.
Motion granted.