
    SUPREME COURT.
    The National Mechanics’ Banking Association agt. Joseph C. Conklin and others.
    
      Sureties wpon a bond given to secure fidelity in a book-keeper—to what extent
    
    Where, in an action against sureties upon a bond given by A., as bookkeeper of plaintiff, conditioned that he should faithfully discharge the duties of that position, “ and the duties of any other trust or employment,” relating to the business of plaintiff, which might be assigned to him or which he should undertake to perform; and A. was subsequently appointed receiving teller of plaintiff, and afterwards was found to be a defaulter, which defalcation occurred long after he was appointed teller:
    
      Held, that the bond in question should not be held to cover this default.
    
      Second Department, General Term, May, 1881.
    
      Before Barnard, P. J., Gilbert and Dykman, JJ.
    
    
      E. H. Pomeroy, for plaintiffs.
    
      John II. Bergen and Thomas D. Bobmson, for defendants.
   Barnard, P. J.

The question presented is one purely of law — what is the true meaning of the bond upon which the action is based? In 1863, the plaintiff appointed the defendant, Joseph 0. Conklin, as book-keeper. The bond in question was given upon the appointment. It is in the penalty of $10,000, and was executed by the defendants. The recitals and conditions are as follows:

Whereas, the above named, the Mechanics’ Banking Association, have appointed the above-named Joseph C. Conklin to the office of a book-keeper of the said association, and the said Joseph C. Conklin hath accepted the same, and consented to perform the duties thereof. How, the condition of such obligation is such that if the above-named Joseph C. Conklin shall faithfully fulfill and discharge the duties committed to and the trusts reposed in him as such book-keeper, and of any other trust or employment relating to the business of the said association which may be assigned to him or which he shall undertake to perform; and shall, also, without neglect or delay, inform the president or cashier of the said association of any embezzlement of the money, property or goods belonging to, and of. any fraud whatever, committed upon the said association, of any false entry, error, mistake or difference of account in the books thereof which he may discover, or which shall come to his knowledge as such book-keeper aforesaid, or while engaged in any other office, duty or employment relating to the business thereof, and which he may discover or which shall come to his knowledge in any matter or thing whatsoever appertaining thereto, and shall also faithfully keep all the secrets of the said association, then the above obligation to be void, otherwise to remain in full force and virtue.

The case discloses that the book-keeper continued to discharge his duties as such until 1870, when he was appointed receiving teller of the defendant’s bank, with an increased salary. He continued to act as receiving teller until 1879, when he resigned, and was found to be a defaulter to the amount of $2,700. This defalcation occurred long after he was appointed teller, and, probably, at or near the end of his employment as teller. The bond in question should not be held to cover this default. It was- given to secure fidelity in a book-keeper, and has no direct reference to fidelity in any other employment. The general words referring to the duties of any other office or employment relating to the business of said association which may be assigned to him, or which he shall undertake to perform, can be referred to the performance of any duty temporarily and occasionally imposed upon the book-keeper as undertaken by him. Such a claim was proper and strictly applied to the employment as book-keeper. It happens from sickness and from other causes that an officer of the bank is temporarily absent, other officers perform his duties. There would be a chance, in such a case, that a bond to secure the faithful performance of the duties of bookkeeper did not include, a failure of duty committed while temporarily acting, as teller or cashier. This claim in question would remove all controversy on that point. For acts done as an officer of the bank, and while book-keeper, his sureties would be liable. It is a far different thing after the bookkeeper ceases to be such, and is appointed to a higher office with greater responsibility and a„larger salary, to hold that this book-keeper’s bond is to apply, by force of these general words, to the office of teller. One construction would easily fall within the intent of the parties, the other would not. Eo new office is mentioned or alluded to, and it is not probable that any was thought of 'by the parties. This view is further indorsed by the recital. That refers only to the fact the board has appointed a book-keeper, and that he has accepted that office, and upon that recital the condition is based. The recital limits the condition of the facts stated in the recital unless the language of the condition is irreconcilable with the recital. As we have seen, there is no repugnance. The bond is to cover all acts and omissions as book-keeper, and all acts and omissions in every office assigned to him while bookkeeper. The judgment, therefore, should be reversed, and a new trial granted, costs to abide event.

Dykman, J., concurs.  