Opinion
November, 1893.
Wallace Thayer, for plaintiff (respondent).
Thomas Cary Welch, for defendant Robie (appellant).
For the most part the questions raised by this appeal have been disposed of adversely to the defendant in Levin v. Robie, post, page 529. The bond here sued upon is given under the Revised Statutes (2 R.S. [8th ed.] 890), and is the ordinary constable's bond. No point is made but that Akers was constable, appointed for the fourth ward of the city, and by the judges of the Municipal Court for service as constable in that court. It has already been noticed in the the Levin case that the appointment by the judges, to perform duties in the Municipal Court, did not change his status as constable of the fourth ward. Neither did the acts which he was called upon to do by the Municipal Court differ in kind from those ordinarily required of a constable. In People v. Vilas, 36 N.Y. 464, Judge GROVER wrote: "A legislative alteration of the duties of an officer do not discharge his sureties, so long as the duties remain appropriate to the office." Among the reasons assigned for this conclusion was that the legislature had power at any and all times to change the duties of officers; the existence of this power is presumed to be known to the officer and the sureties in the bond as though the power was incorporated therein. Later cases support the doctrine of this case. Board of Education v. Quick, 99 N.Y. 141.
The duty imposed upon the constable in the present instance was precisely of such character as he would have been called upon to perform had the execution, issued upon the judgment, proceeded from a Justice's Court. As the bond covers such act, it matters nothing that in other respects the constable's duties were substantially changed and enlarged, for the surety is not sought to be charged for such acts, but only for an act contemplated, and within the terms and scope of the bond. Board of Supervisors, etc., v. Clark, 92 N.Y. 395.
No other points are raised than such as were disposed of in the Levin case. The judgment appealed from affirmed, with costs.
TITUS, Ch. J., concurs.
Judgment affirmed.