Stegman v. Hollingsworth

14 N.Y.S. 465, 39 N.Y. St. Rep. 18, 60 Hun 579, 1891 N.Y. Misc. LEXIS 2052

Opinion

Barnard, P. J.

The paper set forth in the complaint rests upon a consideration. It was given upon the appointment of Francis S. Hodgekinson as under-sheriff of Kings county by the plaintiff, who was the sheriff. It recites that it is sealed, but in fact it was not. It was not given for a past consideration, but the entire official duty of the 'tinder-sheriff thereafter was to be secured by it. An agreement of indemnity is good by paroi. The consideration was original and direct as between the sheriff and the defendant-The appointment depended on it, and the promise rested on the appointment-The paper covered moneys received after the sheriff’s official term was ended-The business out of which the claim arises was placed in the sheriff’s hands, and through him into the hands of the deputy-sheriff. Code, § 184. The-surety was bound by a failure to pay over money even if the sheriff be not. called upon to pay the same. Willet v. Stewart, 43 Barb. 98. The under-sheriff has no right to keep the money for which the sheriff is liable until he is assured that the sheriff will pay it over to the party entitled thereto. Th& judgment should be therefore affirmed, with costs. All concur.