Opinion
March Term, 1901.
Martin Wechsler, for the appellant.
John Ewen, for the respondent.
The action was brought against John Stimmel, surety upon the official bond of Henry Lowey, a marshal of the city of New York, the condition of the bond being "that if the said Henry Lowey shall well and faithfully execute the duties of said office of marshal, without fraud, deceit or oppression, the above obligation shall be void; otherwise shall remain in full force and virtue." Henry Lowey, marshal, made a levy upon personal property under an execution issued upon a judgment obtained by this plaintiff against one Fortunato. After that levy was made, the plaintiff deposited with Lowey the sum of $250, and took from him a receipt in the following words:
"Received from Antonio De Sisto order for the sum of $250 on the Bank for Savings; said sum is to be held by me as security for damages which I may sustain by reason of a levy and execution on the clothing store No. 85½ Baxter Street, N.Y. City, and to be returned within twenty days from date hereof unless a suit is begun for said clothing within said time.
"Dated Nov. 10 th, 1896. "HENRY LOWEY, Marshal."
It is alleged in the complaint that Lowey did not return the $250 upon demand, after the expiration of twenty days, no action having been begun against him as marshal, and that he has wrongfully converted the money to his own use. The complaint also contains allegations of the recovery of a judgment against Lowey, the issuance of an execution which was returned unsatisfied and the granting of leave to the plaintiff to sue upon the bond.
The contention of the appellant is that the surety is liable upon the marshal's bond, because his act in receiving the deposit of money was done by him under color of office, if not by virtue of office. We have been referred to cases in other jurisdictions in which the courts have held that sureties upon official bonds are liable for acts done by their principals colori officii, but we are of opinion that the test of liability in this case is whether the act of the marshal in receiving the deposit was an official or purely an individual one. In the cases in which the surety has been held liable for acts of a principal done under color of office, there was present an element of trespass or wrongdoing as against third parties. There was no such element in the receipt of the money by the marshal in this case. He and the plaintiff entered into an agreement by which the former deposited with him a certain sum of money as indemnity. The marshal had no power to exact it; he had no authority to demand any other indemnity than that provided by the statute, namely, a bond. But it was not a wrongful act on his part to accept other indemnity if it were tendered or furnished him by the plaintiff. The furnishing of that indemnity, however, was a matter resting in contract between himself and the plaintiff. The liability of a surety upon a marshal's bond does not extend to making good defaults of the marshal upon special contracts which may be made by him with persons for whose benefit he is charged with the execution of legal process. Those contracts are not made officially, and while the officer may be liable personally upon them, they are not within the obligation of an official bond, such as that upon which this action was brought. The condition of that bond related to the marshal well and faithfully executing the duties of his office. It did not apply to any act of his that was not really or ostensibly connected with that duty. The making of a special private contract with a particular plaintiff in an execution is no part of the marshal's duty. There does not appear to have been any fraud, deceit, oppression or coercion on the part of the marshal in taking the deposit, but the entire arrangement was one of a private contract, a liability for which could not have been within the contemplation of the surety either actually or by intendment at the time he became a party to the official bond.
We are, therefore, of opinion that the determination of the Appellate Term should be affirmed, with costs.
VAN BRUNT, P.J., RUMSEY and INGRAHAM, JJ., concurred; O'BRIEN, J., dissented.
Determination of Appellate Term affirmed, with costs.