
    Village of Oneida, Resp’t, v. T. Augustus Thompson et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December, 1895.)
    
    1. Municipal corporations—Collector’s bond.
    Where the charter requires a tax collector to pay over all money collected within the time prescribed by his warrant, and his bond requires him to faithfully execute the duties of his office and pay over all moneys as provided by law, the collector and his sureties are liable for moneys lost by the failure of a bank in which he has deposited them.
    S3. Statutes—Repeal.
    An act repealing an old, and granting a new, charter, and providing that it shall not affect any privilege or vested right, saves the right to sue a tax collector for his default.
    Appeal from a judgment in favor of plaintiff,
    B. A. Ransom, for app’lts ; H. W. Coley, for resp’t.
   PAKER, J.

—The trial court has found as a fact, in this matter, that the money collected by the defendant Thompson, as collector of the village of Oneida, were deposited to his credit in the banking house of E. C. Stark & Co., and that the balance, for which this action is brought, remained to his credit when such bankers made their assignment. It further finds that such sum has never been pair over to the treasurer of such village, and we are satisfied from the evidence upon that question that such finding should not be disturbed. The question is therefore presented as to what measure of liability should be imposed upon the collector and his sureties for the loss so sustained.

In the Faulkner Case (People ex rel. Nash v. Faulkner, 107 N. Y. 477, 487 ; 12 St. Rep. 273) it is said that the question is still an open one whether, when a case arises against an officer for not paying over and accounting for public moneys intrusted to him in his official capacity, his liability, in the absence of statutes specially defining it, shall be governed by the common law, or whether the board and more rigid rule of responsibility laid down in the case of Muzzy v. Shattuck, 1 Denio, 233, shall be enforced in this state. In that case it was not considered necessary to determine that question, because the moneys received by the surrogate, the defendant therein, were not deemed public moneys. That suggestion was adopted by this court in the Tillinghast Case (Tillinghast v. Merrill, 77 Hun, 481 ; 60 St. Rep. 549) ; and the question was there considered as an open one. It refused to accept the rule adopted'in the Dorr Case (Supervisors v. Dorr, 7 Hill, 583), and held the defendant liable, though the moneys were lost by him in precisely the same way in which they were lost by the defendant in the case now before us. Its decision was placed, not upon the theory that there'was anything in the bond of the supervisor, the defendant in that case, nor in the statue regulating his liability, that enlarged his common-law obligations, but upon the ground that the weight of authority was in favor of holding such officers as debtors to the town for the public moneys received by them. Such was the conclusion of law found by the trial court in that action, and such conclusion was affirmed on that appeal. That decision seems to be controlling in the case now before us. It is true that there is some difference in the phraseology of the conditions of the bonds and of the statutes imposing the liability in the two cases, but that difference is immaterial, inasmuch as in neither does the statute or the condition of the bond, in terms or by necessary implication, impose the obligation of a debtor upon either officer. Moreover, though different in their phraseology, they are alike in substance. In the case now before us the condition of the bond is that the officer will faithfully execute the duties of his office, and pay over all moneys as provided bv law. The law—section 46 of the village charter (Laws 1886, c. 81)—re-quired him to pay over to the treasurer all moneys collected by him within the time fixed for the return of his warrant. In the Tillinghast Case the officer was required to faithfully disburse, safely keep, and account for the moneys received by him. In the event of his default, the treasurer was directed to sue on the bond for the benefit of the town, and to pay over the amount received to the town. There was nothing in the statute indicating that the officer giving the bond sued upon was to be held to any greater liability than an honest discharge of his duties and a faithful paying over of moneys not properly disbursed. In either-case the measure of liability is the same, and -there was no more ground for holding the supervisor liable as a debtor or otherwise in the Tillinghast Case than there is for .holding the collector liable in the case now before us. This case cannot be distinguished from the Tillinghast Case, and the rule three adopted must be apjjlied to this.

As to the objection that the village of Oneida, as now reincorporated under chapter 620 of the Laws of 1894, has no right to maintain this action, we do not' consider it well taken. The cause of action which the village of Oneida, as incorporated under the former acts, had against these defendants, was not destroyed by the repeal of such acts. The evident intent of the legislature was to preserve all such rights tb the village of Oneida under its new charter, and such, we think, it has done, by setion 10 of title 11 of such charter. It is there declared that the repeal of the former acts shall not affect “ any privilege granted, or right vested,” when such repeal should take effect. The judgment of the court below must be affirmed, with costs.

Judgment affirmed, with costs.

All concur.  