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Erie County v. Diehl

Supreme Court of New York, Appellate Division

January 6, 1909

ERIE COUNTY
v.
DIEHL ET AL.

[114 N.Y.S. 81] The action was commenced on the 8th day of July, 1907, by the county of Erie, on behalf of itself and other persons in interest, against the defendants, who are the bondsmen and the personal representatives of the deceased bondsmen of John B. Sackett, as county treasurer of Erie county, who was such treasurer from the 1st day of January, 1891, to the 31st day of December, 1893, to recover upon such bond or undertaking the amount of damages, penalty, and costs which, it is claimed, said bondsmen became obligated to pay because of the failure of said Sackett to keep and perform the conditions thereof and to faithfully discharge the duties of said office and as required by law.

The items which go to make up the aggregate of the judgment are specified therein, and are as follows:

" That the plaintiff recover of the defendants and each of the defendants: (1) For the benefit of Ella M. Fisher, $2,455.32, and interest on $1,600 thereof from October 30, 1907, to this date; in all, $2,460.12.
" (2) For the benefit of Charles F. Rupp, $1,569.10, and interest on $1,000 thereof from October 30, 1907, in all $1,572.10.
" (3) For the benefit of Edward Metzel, Charlotte Metzel, Arthur Metzel, and Emily Metzel, and John Kramer, Joseph Kramer, and Charles W. Kramer, in amounts corresponding to their respective moneys invested in said Myra C. Holcomb mortgage, $1,599.22, and interest on $1,274.50 thereof from October 30, 1907; in all, $1,603.04.
" (4) For the benefit of the plaintiff for foreclosure costs and expenses, $739.27 and interest on $351.92 thereof from June 10, 1901, and interest on $212.75 thereof from June 10, 1901, and interest on $174.60 thereof from June 14, 1898; in all, $1,056.43.
" (5) For the benefit of the county of Erie, being the forfeiture provided by statute, $1,250.
" (6) That the plaintiff also recover the costs of this action as taxed, amounting to $139.43, making a total recovery of $8,081.12; and that the plaintiff have execution therefor."

It is urged by the appellants that neither of such items are chargeable to them as sureties upon the bond in question, and therefore they ask that the entire judgment be reversed.

[114 N.Y.S. 82] Loran L. Lewis, for appellant Diehl and others.

Love & Keating, for appellant Fallon.

Robert F. Schelling, for appellant Handel.

George H. Kennedy (Phillip A. Laing, of counsel), for respondent.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, ...


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