Ulster County Savings Institution v. Young

15 A.D. 181, 44 N.Y.S. 493

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1897
• Status: Published

Opinions

Herrick, J.:

It will be observed that the defalcation did not occur until long after Trumpbour’s last reappointment, and the question is whether the bond by its terms covers those abstractions. The appellant contends that the bond, by its terms, is limited to the continuance of Trumpbour in office under his original appointment or election and by reappointment, and does not include a continuance in office by holding over after an appointment or reappointment; and that the words used are words of limitation or restriction, and exclude all holding of office except by appointment and reappointment. I do not think such contention should be upheld.

It does not seem to me that the words “ even though he hold under successive appointments ” are words of limitation or exclusion, but of addition. I am aware of the general rule, that when a particular thing is specified, it excludes all others; but that is not an invariable rule; like all other general rules, it has its exception; sometimes a condition, thing or matter is specified, not for the purpose of singling it out as the only condition, or the only thing or matter, to be affected or considered, but for the purpose of including it with others where otherwise it might not be included, or its inclusion be considered doubtful.

The true meaning in this, as in all other cases, is to be sought in a large measure from the character of the language used; here it is evident that it was intended to add to what might otherwise be understood from the bond. The words “ even though” show the intent; as used here they are words of inclusion, not of exclusion. The word “ even ” is here used in the sense of “ also ” or “ likewise” (Century Diet.); and by its use it is' intended to bring within the scope of the instrument a subject or condition that otherwise might not be included, or its inclusion at least be a subject of doubt.

Ordinarily the sureties upon an official bond are not liable for any breach of the condition happening after the expiration of the term for which the officer is elected or appointed, although such officer may be continued in office under the same or a new appointment or election. (Overacre v. Garrett, 5 Lans. 156; Kingston Mutual Ins. Co. v. Clark, 33 Barb. 196.)

Trumpbour was elected treasurer “ for the ensuing year;” that means for one year.

In this case the wording of the bond shows that it was the intention that the sureties should be liable, not merely “ for the ensuing year,” but as long as he remained treasurer; it reads “this bond is to be binding for all the time the said Matthew Trumpbour shall hold said office.”

This language is unnecessary unless it was intended that the sureties should be liable beyond the single year, “ the ensuing year ” for which he was elected. Trumpbour could only “ hold said office ” beyond the year by holding over after the expiration of his term or by being reappointed; the making of a new appointment might well be held to be a termination of his holding under his first appointment, and, at least, cast doubt upon the liability of his sureties ; and to make that liability certain, and for abundant caution, the additional words were used.

• It seems clear to me that without the words “ even though he hold under successive appointments,” the sureties would have been liable, by virtue of the preceding words in the clause, in case Trumpbour held over and continued in office without being reappointed, and the words last quoted were intended to add to the force of the language already used, and, if need be, extend the liability beyond what might be imported from such preceding language, and exclude the possibility of the liability of the sureties being terminated by a reappointment, and they were not used for the purpose of limiting the force of the words previously used, or of restricting the liability of the sureties; and that, by their use, there was no intention of limiting or confining the liability of the sureties to a holding of said office “ under successive appointments,” but to add that to the other ways in which Trumpbour might “ hold said office,” as, for instance, holding over after the expiration of any term for which he might be appointed.

The plain intent of the instrument is to insure the liability of the sureties for all the time Trumpbour acted as treasurer, whether by appointment and reappointments, or by holding over after appointment or appointments. This construction is not a harsh one, for the sureties, by the terms of the bond, had' it within their power to terminate their liability at any time by giving two weeks’ notice.

The judgment should be affirmed, with costs.

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