
    Town of Hadley, Appellant, v. William T. Garner and M. H. Frasier, Respondents.
    Third Department,
    November 14, 1906.
    Parties — when principal not necessary party defendant to action against sureties-—pleading—complaint against sureties on official undertaking of highway commissioner— demand for records not prerequisite to action — sufficient allegation of breach of undertaking.
    In an action by a town against the sureties on an official undertaking of the commissioner of highways, it is not necessary to join the commissioner as a jjarty defendant.
    
      When the official undertaking of a commissioner of highways states that J. C. ol the town of H. has been duly elected commissioner of highways, without stating for what town he was elected, a complaint setting out such undertaking • does not fail to state a cause of action on the theory that no specific obligee is named, for by section 50 of the Town Law only electors and residents óf a town are eligible to town offices.
    It is not necessary, as a prerequisite to an action upon the official undertaking of a highway commissioner, that a demand be made upon him for the records of his office under section 84 of the Town Law. That section has reference only to a proceeding to secure such records.
    While it is inartificial to set out the breach'of an undertaking by negativing the language of its conditions and such pleading is not commended, yet it is sufficient as an allegation of breach upon demurrer.
    In any event the remedy for the defect is by motion to make the complaint more definite and certain.
    Appeal by the plaintiff, the Town of Hadley, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga, on the 15th day of June, 1906, upon the decision of the court, rendered after a trial at the Warren Special Term, sustaining the defendants’ demurrer to the complaint.
    
      J. A. Kellogg and T. W. McArthur, for the appellant.
    
      Fred B. Bradley, for the respondents.
   Chester, J.:

The defendants have demurred to the complaint for a defect in parties defendants and for insufficiency. The action is against the sureties on an official undertaking. We agree with the learned trial justice that it was not necessary to join the commissioner of highways as a party defendant with the defendants who executed the undertaking as his sureties. The undertaking given is in form joint and several, and .for that reason alone it was proper to bring the action against the sureties without joining the commissioner as a party.

We are" unable, however, to agree with the conclusion of the trial court in holding that this complaint does not state facts sufficient to constitute a cause of action.", The undertaking in question recites that John Cowles, of the town of Hadley, in the county of Saratoga and State of New York, was on the 7th day of March, 1899, duly elected commissioner of highways. It does not state, however, in express terms of what town'he was so elected. I.t is urged that the ■omission to state that in" the undertaking and to allege in the complaint that the plaintiff is the obligee is fatal. It is true that there is no obligee .mentioned in the undertaking, but the provisions of section 63 of the Town Law (Laws of. 1890, chap. 569), prescribing the form- of the undertaking and under which it was given, do Hot provide in so many words that it shall run to the town or to its supervisor, or to any other obligee in form. It provides, however, that it is to “ be approved by the supervisor of his town.” The "undertaking in question bears the approval of the supervisor .of the. town of Hadley, and in the- complaint, after alleging that the plaintiff is a municipal corporation, it is alleged “that on the 7th day of March, 1899, one John Cowles was duly elected commissioner of highways of said town; that as sucli commissioner he duly gave a written undertaking as required by law, the sureties in which undertaking were the above-named defendants, and which undertaking was duly acknowledged, executed and" delivered by them to the supervisor of said town, who thereupon duly approved of the same as required by law, and the same was, on the 13th 'day of March, 1899, duly filed-in the town clerk’s office of said town of Hadley,” and a copy of the imdertaking is annexed to the complaint. While the undertaking does not, in form, run to any specific obligee, and it is not therein stated of what town Cowles was elected commissioner of highways, yet it is therein stated that “ John Cowles of the town of Hadley” has been “ duly elected commissioner of highways,” and as the Town Law (§ 50) makes only electors of the town, who must, of course, be residents thereof,, eligible to a town office, it follows that Cowles could not have been duly elected commissioner of highways of any other town. I cannot agree that an omission to state in express terms in the undertaking that he was elected commissioner of highways of the town of Hadley is a fatal defect in this complaint, when not only the fair but the necessary inference from the language of the undertaking is that it was.given to-secure the faithful performance of his duties as commissioner of highways of that town, and when such defect, if it is-one, is supplemented by the allegations of the complaint that he was duly elected commissioner .of highways of said town, and that the undertaking was delivered to and duly approved by the supervisor of such town and filed in tile office of the town clerk thereof.

The complaint is also criticised because there is no allegation therein of any demand upon Cowles by his successor 'in office for the records, books and papers belonging to such office, as required by section 84 of the Town Law. But that section has reference to a proceeding against an outgoing officer'by his successor to procure a delivery to. the latter of the books and papers of the office, while this is not such a proceeding, but an action upon an official undertaking for an alleged breach thereof. Here there is no condition in the undertaking requiring a demand upon the principal before commencing an action for breach thereof, and hence no demand was necessary. (2 Cyc. 947, and cases cited.)

It is further urged that the complaint is insufficient because conclusions only have been alleged with respect to the breach of the undertaking. A copy of the undertaking is annexed to the complaint and the breach is therein alleged by negativing the language of the condition.

While this form of pleading is not to be commended, we think it will stand the test of sufficiency upon a demurrer. It has been so held in some early cases. (Albany Dutch Church v. Vedder, 14 Wend. 165; Smith v. Jansen, 8 Johns. 111; Hughes v. Smith, 5 id. 168.) The point of these .cases seems to be that when simply negativing the condition of the bond necessarily shows a breach it is sufficient. (See, also, 3 Ency. Pl. & Pr. 656.) Here, after alleging the expiration of Cowles’ term of office and the election and qualification of his successor, more than ten days before the commencement of the action, it is alleged that said John Cowles did not faithfully discharge his duties as such commissioner of highways, and did not within ten days, or at any other time after the expiration of his term of office, pay over to his successor all moneys remaining in his hands as such commissioner, and did not render to such successor a true account of all moneys received and paid out by him as such commissioner, to the damage of the plaintiff, the Town of Hadley, in the sum of Seven hundred dollars ($700).”

The allegation that Cowles did not within the time above specified pay over to his successor all moneys remaining in his hands as such. commissioner is equivalent to saying that lie had received moneys; that lie had them in his hands after the expiration of his term of office, and that he had failed to pay them over within the time stated. It is further alleged that the damage to the town of Hadley by the breach alleged was $700.

While this complaint could well be more specific, we think that' the remedy of the defendants for such defect was to move to make it more definite and certain, and that, bearing in mind the rule that upon demurrer all fair and reasonable inferencés are to be indulged in to support the pleading (Marie v. Garrison, 83 N. Y. 14; Lorillard v. Clyde, 86 id. 384),' a cause of action is stated in this complaint.

The interlocutory judgment should be reversed, with costs, and demurrer overruled, with costs, with leave to the defendants to answer upon the payment of such costs.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with usual leave to defendants to plead upon payment of such costs'.  