from the bank during that period only $2,661.61, and these withdrawals were all made in May, 1905, the second month of his term. On April 16, 1906, when he qualified for his second term, the amount supposed to be on deposit in the bank was $41,529.78. Between April 16, 1906, and December of the same year he made additional deposits of $12,061. Appeal from Supreme Court, Appellate Di- 13, and during the same period drew from vision, First Department. Action by John F. Yawger as receiver of the Metropolitan Surety Company against the American Surety Company. From an order of the Appellate Division, First Department (156 App. Div. 504, 141 N. Y. Supp. 491), reversing an interlocutory judgment and overruling a demurrer to the complaint, defendant appeals by permission, bringing up for review questions certified by the Appellate Division (157 App. Div. 911, 142 N. Y. Supp. 1151). Affirmed. Carl Ehlermann, Jr., of New York City, for appellant. John Burlinson Coleman, of New York City, for respondent. CARDOZO, J. [1] This case comes here on a demurrer to the complaint. One Grisco was the supervisor, and ex officio the treasurer, of the town of Cicero, in Illinois. He was elected for the first time on April 4, 1905, for the term of one year, and until the election and qualification of a successor. By the town charter, the treasurer is required to receive and hold the town's moneys, and to give a bond in a form prescribed by law. It is also declared to be his duty "to keep a correct account of all moneys received and paid out by him, and when required to furnish to the board a statement of the moneys in his hands." Following Grisco's election in April, 1905, the defendant, American Surety Company, became surety for him in the sum of $100,000. The bond is dated April 25, 1905; it recites that he was elected supervisor on April 4, 1905, for the period of one year, and its condition reads as fol lows: "Now, therefore, if the said Louis Grisco shall faithfully account for all moneys that may come into his hands, as such supervisor, and pay over the same pursuant to the provisions of law or the order or resolution of the board of trustees of the town of Cicero, and shall faithfully perform the duties of his office to the best of his skill and abilities, then this obligation to be void, otherwise to remain in full force and effect." Grisco's first term expired on April 4, 1906, and he was then re-elected for another year. On April 16, 1906, he gave another bond similar in form to the first one, with the exception that the surety on the second bond was the Metropolitan Surety Company and not the defendant. Between April 4, 1905, and April 16, 1906, Grisco deposited in the Lincoln Bank in Cicero moneys belonging to the town amounting in the aggregate to $44,191.39. He drew the bank only $100. There was thus a final balance for the two years of $53,490.91. On December 17, 1906, the Lincoln Bank was adjudged a bankrupt. In reality, it had been insolvent for a long time. It was insolvent on April 16, 1906, when the Metropolitan Surety Company signed a bond for the second term. The allegation is that Grisco "did not then nor thereafter withdraw from the said Lincoln Bank any of the aforesaid balance of $41,529.78 which he had on deposit • at the conclusion of his nor could the said balance have been withdrawn on previous term of office, account of the insolvency of said private banking institution as herein set forth." The allegation also is that he "did not and could not, on account of the aforesaid insolvency of the said private banking institution," pay over the said balance to himself as supervisor and treasurer. When Grisco's second term expired in April, 1907, demand was made by his successor for the payment of $53,490.91, but he "failed and neglected," so the complaint alleges, "to account for said $53,490.91 to the town of Cicero, and failed to pay over said sum to his successor, * as required by law." The town of Cicero then sued the Metropolitan Surety Company for $53,490.91, with interest. Included in this claim was the $41,529.78, deposited in the first term. The action was tried in Illinois, and after an appeal had been carried to the highest court of that state, the Metropolitan Surety Company, in obedience to the judgment of the court, paid to the town of Cicero $58,000. It thereupon received an assignment of the town's rights against the defendant, the American Surety Company, by reason of the latter's bond. On this state of facts the plaintiff, as receiver of the Metropolitan Surety Company, claims that the loss sustained during the first term should be borne by the two surety companies, and he brings this action to enforce an equitable contribution. It is urged for the defendant that there has been no default under the first bond. It is insisted that Grisco fulfilled the condition of the bond when, acting as his own successor, he continued the account in the Lincoln Bank during his second term, and that thereafter the sole liability, not only for later deposits, but also for those made during the first term, devolved upon the second surety. We do not share that view. We think that to the extent of the loss suffered during the first term the defendant, as well For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-5 as the second surety, was liable to the town, I would have been honored, the loss was not and that the second surety, having discharg- yet complete. But the allegations of the ed a debt for which the defendant was equal- complaint show more than a deficit of agly bound, is entitled, through the remedy of gregate assets as compared with aggregate contribution, to enforce an equitable divi- liabilities. They show that by April, 1906, sion. Barnes v. Cushing, 168 N. Y. 542, 61 the deficit had progressed so far that the N. E. 902. This must be so unless it can be balance due to the town could not have been said that Grisco has already satisfied the paid. This suffices, we think, to show that condition of the defendant's bond. We do part at least of the loss had been then susnot think he has. In our view he has nei- tained. The form of the allegation is criticisther accounted for the moneys that came in- ed, but we think it is proof against demurrer. to his hands during his first term, nor paid The suggestion is made that, even though the them over pursuant to law. treasurer was unable to draw out the entire balance, he might, for all the complaint shows, have drawn out part of it. That is something which bears not so much on the right of recovery as on its extent. If the plaintiff has a right to recover anything, the complaint states a cause of action. The measure of the loss may be litigated hereafter. It is important to bear in mind the nature of a public officer's liability for public moneys received by virtue of his office. His liability does not grow out of negligence. It is absolute, admitting of no excuse, except perhaps the act of God or the public enemy. Tillinghast v. Merrill, 151 N. Y. 135, 142, 45 N. E. 375, 34 L. R. A. 678, 56 Am. St. Rep. 612; Smythe v. United States, 188 U. S. 156, 23 Sup. Ct. 279, 47 L. Ed. 425. If he puts the money in a safe and burglars break open the safe and steal the money, he is liable. If he puts it in a bank, and the bank loses it, he is liable. The allegation in this complaint is, in substance, that the Lincoln Bank lost the money, and lost it during the first term. At the end of that term it was no longer money in Grisco's hands; it was no longer money in bank; it was merely a fictitious and misleading entry on a balance sheet. In these circumstances it is impossible to hold that Grisco accounted for the money by keeping his books as if he still held it. The fact is that he had already lost it, and he has never put it back. He may have been innocent of any willful wrong, but that does not absolve him. He may have been ignorant of the loss, but that again does not absolve him. He did not account for the money by innocently carrying forward a fictitious balance any more than he would have accounted for it by carrying forward such a balance with guilty knowledge. It might as well be said that, if he had put the money in a vault, and the vault was robbed without his knowledge, he could have discharged his first surety by reporting to the second surety that the money was intact. Before the first term was ended, the money had been lost, and something more than mere words were need to restore it. We do not mean to say that the plaintiff [2] It is argued, however, that if the first surety was liable to the town for the deposits lost during the first term, the second surety, on a proper construction of its bond, was not, and that without identity of liability between sureties the right to contribution fails. We think this argument as applied to the case at bar is without force. The second surety in paying this loss was not a volunteer. It resisted the town's suit and did not pay till its liability was adjudged. Town of Cicero v. Grisko, 240 Ill. 220, 88 N. E. 478. The adjudication seems to be in accord with the settled rule in Illinois. Morley v. Town of Metamora, 78 Ill. 394, 20 Am. Rep. 266; Cowden v. Trustees of Schools, 235 Ill. 604, 85 N. E. 924, 23 L. R. A. (N. S.) 131, 126 Am. St. Rep. 244. At all events, the second surety, having discharged the defendant's liability not officiously, but under compulsion of law, has brought itself within the reason and the equity of the rule of contribution. Aspinwall v. Sacchi, 57 N. Y. 331; Pease v. Egan, 131 N. Y. 262, 273, 30 N. E. 102. Our conclusion therefore, is that the town treasurer did not account for the town's moneys and pay them over to his successor by taking office a second time and giving a new bond, and that to the extent that the moneys were lost during the first term the defendant continued liable. The order should be affirmed, with costs, and the question certified answered in the affirmative. WILLARD BARTLETT, C. J., and WERNER, HISCOCK, CHASE, HOGAN, and MIL would establish a loss of the money during Order affirmed. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2599-2614; Dec. Dig. § 1024.*] 2. JURY (§ 116*)-CHALLENGE TO PANELGROUNDS. 5. CRIMINAL LAW ( 1166*) APPEAL HARMLESS ERROR-DRAWING OF JURORS. The drawing of a special jury at 9 o'clock on a certain day, under an order directing that it should 'be drawn at 10 o'clock on such day, was ground for reversal of a judgment of conviction, where the objection was directly and seasonably raised by a proper challenge to the panel, in the absence of any showing that the defendant consented to such drawing, or that in person or by counsel; the variance from the he did not intend to be present at the drawing order in itself showing prejudice. Law, Cent. Dig. §§ 3114-3123; Dec. Dig. [Ed. Note.-For other cases, see Criminal 11662.*] Cardozo, J., dissenting. Appeal from Supreme Court, Appellate Division, Second Department. Under Code Crim. Proc. § 362, providing William C. Damron was convicted of larthat a challenge to the panel must be founded ceny in the first degree. From an order of only on a material departure to the prejudice the Appellate Division, Second Department of the defendant from the forms prescribed by (160 App. Div. 424, 145 N. Y. Supp. 239), re the Code of Civil Procedure and the Judiciary Law (Consol. Laws, c. 30) in respect to the draw-versing the judgment of conviction and granting and return of the jury or on the inten- ing a new trial, the people appeal. Affirmed. tional omission of the sheriff to summon one or more jurors, a material departure to the prejudice of the defendant from the forms prescribed by the statute under which the jury was drawn, though neither the Code of Civil Procedure nor the Judiciary Law is a sufficient foundation for a challenge. James C. Cropsey, of Brooklyn, for the People. John J. Curtin, of New York City, for respondent. WILLARD BARTLETT, C. J. [1] The or[Ed. Note. For other cases, see Jury, Cent. der of reversal in this case is based on an Dig. 88 542, 543; Dec. Dig. § 116.*] 3. JURY ( 58*)-SPECIAL JURY-STATUTORY PROVISIONS. Laws 1901, c. 602, provides for the appointment of a commissioner of jurors and for a special jury in civil and criminal actions in counties having a population of 1,000,000 or more. Laws 1902, c. 564, provides for the appointment of a commissioner of jurors in the county of Kings, and, after repeating the provisions of the act of 1901 in reference to special jurors and special juries, repeals all general and special laws in conflict therewith. Laws 1904, c. 458, amends section 5 of the act of 1901 by providing that the day specified in the order for a special jury for the attendance of such jury must be at least five days, in addition to Sundays, holidays, and half holidays, after the day specified for the drawing of such jury. Held, that, the act of 1902 being in violation of the constitutional prohibition against private or local bills for selecting, drawing, summoning, or empaneling grand or petit jurors, the drawing of a special jury in the county of Kings is governed by Laws 1901, c. 602, as amended by Laws 1904, c. 458, and hence the order for a special jury should have provided for an interval of at least five days between the day when the jurors were drawn and the day when they were required to attend. [Ed. Note. For other cases, see Jury, Cent. Dig. § 266; Dec. Dig. § 58.*] The failure of an order for a special jury to provide for an interval of at least five days between the day when the special jurors were to be drawn and the day upon which they were required to attend as required by Laws 1901, c. 602, § 5, as amended by Laws 1904, c. 458, was not prejudicial to a defendant; such provision being solely for the convenience of the jurors. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. 8 11662.*] error of law only, the Appellate Division "having reviewed the facts herein and being satisfied with the judgment in that respect." The people have the right to appeal from such an order, and they are not required to give a stipulation for judgment absolute. Code Crim. Proc. § 519; People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 546; People v. Gaffey, 182 N. Y. 257, 74 N. E. 836. At the outset of the trial the defendant interposed a challenge to the panel of special jurors. Although no formal exception to the challenge (which would be equivalent to a demurrer) was entered by the district attorney, as prescribed in section 364 of the Code of Criminal Procedure, it is evident that the court proceeded with the assent of the parties precisely as though the district attorney had duly excepted, and the challenge was disallowed. This ruling constitutes the error for which the judgment has been reversed. The challenge was based on two grounds: (1) That the panel of special jurors drawn pursuant to an order of the Supreme Court, made on the 16th day of January, 1913, was not drawn in accordance with section 5 of chapter 602 of the Laws of 1901, as amended by chapter 458 of the Laws of 1904, in that the day specified in said order and on which the said jurors were required to attend court was less than five days after the day specified in said order for the drawing of said special jury; and (2) that said jurors were not drawn as provided in the aforesaid order of January 16, 1913, in that they were drawn at 9 o'clock a. m. on January 18, 1913, instead of being drawn at 10 o'clock a. m. as *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe commanded by said order. The Appellate Di- | county (who had been a county officer since vision deemed the first ground untenable, but thought that the challenge should have been allowed on the second ground. [2] In the dissenting opinion below a doubt is suggested as to whether there is any statutory basis for such a challenge to the panel as was here interposed. The Code of Criminal Procedure (section 362) provided: "A challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure and the Judiciary Law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn." The variances alleged and admitted to have occurred in the present case were departures from statutes other than the Code of Civil Procedure and the Judiciary Law (Consol. Laws, c. 30). Similar challenges to the panel, founded upon other statutes than those specified in section 362, have been treated as properly interposed, however, in cases which have come to this court (People v. Hall, 169 N. Y. 184, 62 N. E. 170; People v. Ebelt, 180 N. Y. 470, 73 N. E. 235); and I think it may be regarded as settled that a material departure to the prejudice of the defendant from the forms prescribed by the statute under which the jury was drawn is a sufficient foundation for a challenge to the panel. [3] In order clearly to understand the disposition of the case by the Appellate Division it is necessary to trace the progress of legislation affecting special jurors in Kings county from the enactment of chapter 602 of the Laws of 1901. That statute was a general law entitled: "An act to provide for the appointment of a commissioner of jurors and to provide for a special jury in civil and criminal actions in each county of the state having a population of one million or more according to the last preceding federal census." 1858) upon the justices of the Appellate Division was speedily assailed as unconstitutional, and with success. In Matter of Brenner, 170 N. Y. 185, 63 N. E. 133, this court held that chapter 602 of the Laws of 1901, in so far as it transferred the appointment of the commissioner of jurors to state authorities, was in violation of section 2 of article 10 of the Constitution. This decision was rendered on March 14, 1902; and on April 11, 1902, chapter 564 of the laws of that year was enacted, entitled: "An act in relation to jurors, and to the appointment and duties of a commissioner of jurors in the county of Kings.” After providing for the appointment of such commissioner by the county judges and surrogate of Kings county, and for the organization and administration of his office, this law repeated the provisions of the act of 1901 in reference to special jurors and special juries, and repealed all general and special laws in conflict therewith. Notwithstanding this special enactment, the Legislature in 1904 amended the general act of 1901 by adding to section 5, relating to the order for a special jury, a requirement that: "The day so specified for the attendance of the special jury must be at least five days in addition to any Sunday, holiday or half holiday, after the day specified for the drawing of the special jury." Laws of 1904, c. 458. * * In 1909, on an appeal in a civil action from an order denying a motion for a special jury, the Appellate Division of the Second Department was called upon to determine what law regulated the selection and summoning of Coler v. special jurors in Kings county. Brooklyn Daily Eagle, 133 App. Div. 300, 301, 117 N. Y. Supp. 273. The Constitution forbade the Legislature from passing any private or local bill for selecting, drawing, summoning, or impaneling grand or petit jurors. The first section provided for the appoint- The act of 1902 was a local act which proment of a commissioner of jurors in each vided for selecting and drawing petit jurors, such county by the justices of the Appellate although not open to any constitutional obDivision of the Supreme Court in the depart-jection so far as the provision for the apment in which the county was situated. The second section provided that the commis-pointment of a commissioner of jurors was sioner of jurors in each such county should select from the persons qualified to serve as trial jurors such number of persons to serve as special jurors as the justices of the Appel-isting act, under the doctrine suggested in late Division should from time to time direct. Further on in the statute provision was made for ascertaining the qualifications of special jurors; and section 5 prescribed the conditions under which application might be made to the court for a special jury to try a civil or criminal case, and the form of order if the application was granted. "The order must specify the time when the drawing of such special jury shall take place and the number of special jurors to be then drawn, the term of the court and the particular day in the term when such special jury must attend." The attempt to confer the power of appoint concerned. The court expressly refrained from deciding whether it might not be sustained as virtually an amendment to an ex "for the reason that there is a general act, This decision in Color v. Brooklyn Daily Eagle, supra, must have escaped the attention of the Appellate Division on the present appeal, for we can hardly suppose that it was the intention of the judges to overrule it without mentioning it, yet they have adopted ing and dissenting opinions, holding that the law concerning special jurors in Kings county is to be found in chapter 564 of the Laws of 1902 and not in chapter 602 of the Laws of 1901 as amended by chapter 458 of the Laws of 1904. I agree with the conclusion reached in the earlier case. There is no pretense that the act of 1902 was reported to the Legislature by commissioners to revise the statutes and so without the constitutional prohibition against the passage of local bills relative to the selection of jurors. present at the drawing in person or by counsel. If such had been the fact, it should have been made to appear by the district attorney in a denial of the challenge. As the case stood, the facts alleged as the second ground of the challenge imported material prejudice to the rights of the defendant, and the challenge should have been allowed. For these reasons I think that the order of the Appellate Division reversing the judgment and directing a new trial should be affirmed. WERNER, CHASE, COLLIN, and HOGAN, JJ., concur. CUDDEBACK, J., not voting. CARDOZO, J., dissents. Order affirmed. (212 N. Y. 264) [4] If this view is correct, the order for a special jury in the present case should have provided for an interval of at least five days between the day when the special jurors were to be drawn and the day upon which they were required to attend. Laws of 1904, c. 458. I think the courts below were right, however, in holding that the challenge to the panel on this ground was properly disallowed. The requirement was not for the benefit of the defendant, and the omission to observe it could not have prejudiced him in 1. COMPROMISE AND SETTLEMENT (§ 6*)-CONany way. It was solely for the convenience of the special jurors. at all. POST et al. v. THOMAS et al. (Court of Appeals of New York. July 14, 1914.) SIDERATION DISPUTED Ов DOUBTFUL Thereaft dealing in the stock of a railroad company [5] As to the other ground of the challenge, namely, the drawing of the special jury before the hour designated therefor in the order, the case is very different. The command of the statute is that the order must specify the time when the drawing of such special jury shall take place. This is clearly designed for the benefit of the defendant. Without notice of the actual time of the drawing, he is deprived of any means of knowing whether it is properly conducted or not, or indeed whether there has in fact been any drawing "It is plain," said Andrews, J., in People v. McQuade, 110 N. Y. 284, 294, 18 N. E. 156, 159 (1 L. R. A. 273), "that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent." While the learned judges who dissented in the Appellate Division are right in insisting that the departure from the forms prescribed by law must be shown by the challenge to have been prejudicial to the defendant, I think that such prejudice is sufficiently alleged by the simple averment that the special jury was drawn an hour too early. Such a variance, serious as it is, doubtless might be disregarded if it had passed unnoticed until after conviction, without objection or remonstrance; but when it is attacked directly and seasonably by a proper challenge to the panel, it is neither technical nor unsubstantial. To treat it as such would be virtually to repeal the statutory provision which entitles the defendant to know, by means of the order for the drawing, the actual time when the special jury is drawn. His deprivation of this right cannot be sanctioned on the assumption that he may have consented to the earlier hour, or may not have intended to be § 6.*] [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.*] 2. COMPROMISE AND SETTLEMENT (§ 6*)-CONDISPUTED OR DOUBTFUL SIDERATION Where a debt or claim is disputed or contingent at the time of a payment, the payment of a part of the whole debt is a good satisfaction, though there is no solid foundation for the dispute, if the dispute is honest and not fraudu lent. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |