Ulster County Savings Institution v. Ostrander

Appellate Division of the Supreme Court of New York

Ulster County Savings Institution v. Ostrander

15 A.D. 173, 44 N.Y.S. 181

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1897

StatusPublished

This text of 15 A.D. 173 (Ulster County Savings Institution v. Ostrander) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ulster County Savings Institution v. Ostrander, 15 A.D. 173, 44 N.Y.S. 181 (N.Y. Ct. App. 1897).

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Opinions

Putnam, J.:

The defendant Ostrander, on July 16,1867, was elected treasurer of the Ulster County Savings Institution for the ensuing year, and with the defendant Bruyn, on that day, executed the bond on which this action was brought, which contains the recitals set out in the opinion of Merwin, J. At the annual meeting of the trustees of the Ulster County Savings Institution, held July 21,1868, the defendant Ostrander was re-elected for the year, and on July 20, 1869, he was again re-elected for the ensuing year.

It is a well-settled principle that “the liability of-a surety is limited to the express terms of the contract; his obligation, so far as warranted by the terms employed, should he construed strictly and favorably to him.” (Ward v. Stahl et al., 81 N. Y. 406.)

I think, therefore, that the defendant Bruyn was only liablé on the bond in question during the year for which Ostrander was elected when the instrument was executed. I am unable to see why the principle established in Kingston Mutual Ins. Co. v. Clark (33 Barb. 196); Overacre v. Garrett (5 Lans. 156); Hassell v. Long and Another (2 Maule & S. 363); United States v. Kirkpatrick (9 Wheat. 720); Liverpool Water Works v. Atkinson (6 East, 507); Leadley et al. v. Evans (2 Bing. 32); Lord Arlington v. Merricke (2 Saund. 411), and many other cases that might be referred to, does not apply.

The liability of the defendant as a surety is not in any manner affected by the existence of a by-law of the Ulster County Savings Institution that the treasurer shall hold office during the pleasure of the board of trustees. In this case the pleasure of the board as to the term of office of the treasurer was signified when he was elected. He was elected for the ensuing year, and at the end of that period he was re-elected. The effect of the action of the trustees who made the by-law in question in electing the treasurer for one year prevented such by-law from affecting his term of office.

[175]*175I think the case was properly disposed of below, and that the judgment should be affirmed.

Parker, P. J., and Landon, J., concurred; Merwin and Herrick, JJ., dissented.

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Putnam, J.:

The defendant Ostrander, on July 16,1867, was elected treasurer of the Ulster County Savings Institution for the ensuing year, and with the defendant Bruyn, on that day, executed the bond on which this action was brought, which contains the recitals set out in the opinion of Merwin, J. At the annual meeting of the trustees of the Ulster County Savings Institution, held July 21,1868, the defendant Ostrander was re-elected for the year, and on July 20, 1869, he was again re-elected for the ensuing year.

It is a well-settled principle that “the liability of-a surety is limited to the express terms of the contract; his obligation, so far as warranted by the terms employed, should he construed strictly and favorably to him.” (Ward v. Stahl et al., 81 N. Y. 406.)

I think, therefore, that the defendant Bruyn was only liablé on the bond in question during the year for which Ostrander was elected when the instrument was executed. I am unable to see why the principle established in Kingston Mutual Ins. Co. v. Clark (33 Barb. 196); Overacre v. Garrett (5 Lans. 156); Hassell v. Long and Another (2 Maule & S. 363); United States v. Kirkpatrick (9 Wheat. 720); Liverpool Water Works v. Atkinson (6 East, 507); Leadley et al. v. Evans (2 Bing. 32); Lord Arlington v. Merricke (2 Saund. 411), and many other cases that might be referred to, does not apply.

The liability of the defendant as a surety is not in any manner affected by the existence of a by-law of the Ulster County Savings Institution that the treasurer shall hold office during the pleasure of the board of trustees. In this case the pleasure of the board as to the term of office of the treasurer was signified when he was elected. He was elected for the ensuing year, and at the end of that period he was re-elected. The effect of the action of the trustees who made the by-law in question in electing the treasurer for one year prevented such by-law from affecting his term of office.

[175]*175I think the case was properly disposed of below, and that the judgment should be affirmed.

Parker, P. J., and Landon, J., concurred; Merwin and Herrick, JJ., dissented.

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15 A.D. 173, 44 N.Y.S. 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ulster-county-savings-institution-v-ostrander-nyappdiv-1897.

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