The New York herald., 1871-10-30


Office as an once did not absolve the person ap
pointed FROM the legal and moral obligation Of ac-
In his hands In consequence OF such appointment.
This great principle has been since repeatedly
ana an Tes SHOWS Sy s1s s Of ali
Otiicial bonds, person who undertakes any well
defined duty IN redpeGs e the in or
ful discharge OF the duties which ne undertakes,
and that such contract raises legal and moral OBJ
iigatlon to account for the moneys that have como
Il Is ' apparent therefore, that it is on the ground
OF agency that all persons who undertake to In
the custody and disbursement OF public moneys are
liable 70 their principal, the government or body
liable II the agency is an office established by law,
with duties defined by law and with mode or su-
answer your first question, therefore, without
hesitation, In the Affirmative am OF opinion that
aaa any duty to perform the audit tan ana pay payment
OF claims, and VINO 1y reason Of capabie negligence
in the discharge Of tina, duty or BY reason o. fraud
allowed money OF the city or county to be paid to
persons not entitled to receive it. is liable IN dam
ages to be measured by the amount OF the money SO
TINS, Il seems to me, virtually answers your
has a cause OF action against OF It's officers to
recover damages for neglect of official duty or
money has been unlawiully distracted from the
treasury-a cause of action the existence of which
follow that no other government or body polite
can have the same cause of action. No
dividuais or public bodies, Scan can pSee have the
same OF action against the same defendant IN
respect OF the same sum OF money. Tne prlncipaI
distracted by the act or omission of his agent Is the
party in whose name and behalf action can be
maintained for the money or for the damages sus.
tained by it's loss. am quite unable understand
IN what way cause OF action that has accrued to
to the city or county OF New York; in respect OF the
wrongful abstraction OF money from the
city Or county funds fun can be said also 70
nor do understand In what way the powers OF the
Attorney General can be applied to the
damages for its loss. The powers OF the Attorney
General are to be measured 6y his statute duties.
BY the keysed statutes to s pr o chap title sec
eral ITO prosecute and defend all actions In the
event Of which the people OF this State are inter-
ested,n and know OF no other general declaration
OF his duties and no other power vested In his Office
that is not special In Its nature among which latter
longing to cities or counties or to sue Tor pecuniay
damages that have accrued to cities or counties by
reason OF the misconduct OF their officers. Is not
Now the people Of the state certainly cannot be
said to be nterested IN the event or actOnn the
object OF which Is to recover money belonging to
city county, or the object OF which Is to recover
damages for the misconduct OF an olcer Of city or
county in respect Of the custody disbursement Of
Its funds. The people OF The State as palntlnS or
compainants, are ''interested in the event or an
action when the avas OF the action Will rghrlully
accrue to them, when the cause OF action belongs
to them and not to some other party, ana
when the proceeds or the judgment, II one
be recovered will be the property OF the State In
moral and general and in large political sense
being good oruer ana public virtue OF all their
nclpa corporations; but this Is not the sense In
which they are INTERESTED In the event OF actions.
They are interested as plaintilIs in the event Of
civil action when the cause Of action belongs to
them, and not otherwise; and they are interested IN
the event OF q criminal action because the crime
that is sought to be punished Is an offence against
their sovereignty and can be punished only by
themselves.
1t will be good test OF the question whether
civil action IN the name OF the people OF the State
of the State, can reach the money OF this city or
county that has Deen wrOnguy abstracted from Its
damages against q clly or county officer for ms
coniuct in his Oifice that has caused loss
1s o 81 MY ras the Ts S
such an action. Is the money TO be paid into the
State Treasury Is It to become the property OF the
name Of the State and directed by the Attorney
General to render Judgment that the money,
county, when the of action Is one claiming to
nave accrued to the state or is set forth in an ac
ton In the event Of which It Is averred that the peo
pie Of the State are interested2
BY law the Attorney General is required ito pay
for debts penalties forfeited to the people OF
this state;' and am at loss to know what else he
money recovered In action IL the name or on be-
hall OF the people Of the s,.ate II such action
Is instituted to recover the moneys said to have
been lost from the city county funcs, or to re-
cover damages against the city or county officer for
from the Legislature.
1t is, therefore, at least very doubtful whether
such action in behalf OF the State adequate
remedy reach the wrong that Is said to have been
done; and for thls as well as other reasons, 1t is
your pain ofilcal duty to prosecute the remedies
which the law affords to the city or county whose
funds or whose claims for damages are the proper
subjects OF recovery and for the recovery OF which
you have received instructions from the chief exec
Neyertheiess, as you cannot tell what may be
devised by the legal acumen OF those who are
with the duty Sf applying p he N Of the
action that have arisen here from the supposed
wrongful distractions of the city or county funds
as some remedy supposed to be within the
powers OF the Attorney General and not
yet discoverable by you YOU, or u. me me may
viii become your duty TO act as the principal law
officer OF the city and county, toward such Efforts
o'conor, under the date Of the 2lst inst tnat you
hold yourself ready, In your official capacity, to
n ii o the Of the s
county Of New York which you could afford hlm on
his requirement.
But while this was in my opinion, q very proper
as well courteous offer on your part, and while
am fully aware Of your purpose to act In accord
ance with 1t by furnishing to that gentleman, as
representative OF the Attorney General, any facts
that are within your knowledge and that you can
i am clearly OF opinion that II would not be q
proper discharge OF your 0ffclal duty II you omitted
10 Wc IN oa he been es 'g Gr Be any
the proper authority 10 institute IN the interest Of
tine city OF county,
remedy or redress by way OF civil action for the
recovery Of money OF the city or county OF New
York can be reached through the Office OF the At
torney General, think II quite clear that no actions
Instituted by you behalf Of the city county
create any obstacle to any proceedings that may be
directed by that Office,
In my opinion your ofncial duty and obligation
are to pursue with all proper diligence and fidelity
the PLAIN and direct remedies which the law affords
to the city county OF New Ork, Tor ac-
tion that have accrued to the other or them,
and to recover the moneys which belong TO one or
the other OF them.
BY such a course you will in no way create any
impeachment to the prosecution of any action ac-
tons in the name or the Attorney General and on
behalf OF the people OF the State, whose cause OF
action, II any exists, must DEPEND upon principles
and legal theories quite distinct from the rights OF
the city county to hold Its own officers RESPONSE
BILE for the money which they have embezzled or
lost
when an action for these purposes has been COM
menced by You in behalf OF the city or county 1t is,