Jayne, Stanton and Hall. The opinion of the court was delivered by Hall, J.s.c. (temporarily assigned).
This is an appeal from a judgment entered against the defendant in the amount of $247.27 in the Essex County District Court following a trial without a jury. The cause of action sued on was based on an agreement of indemnity given by defendant to plaintiff in connection with the latter's issuance of a fidelity bond covering the defendant as assistant tax collector of the Borough of Beach Haven.
An earlier trial in the same tribunal resulted in a judgment for plaintiff in a smaller amount, which was reversed by this court because of the absence of proof of the condition of the bond and breach thereof, and the case remanded for a new trial. 21 N.J. Super. 405 (1952). The defendant was granted certification by the Supreme Court on her contention that entry of judgment in her favor should have been directed on the appeal. The Supreme Court held that a new trial was proper. 12 N.J. 365 (1953). The judgment now appealed from resulted from the trial so ordered.
We take judicial notice of the fact that the Borough of Beach Haven is a seaside resort and that it is governed by a board of commissioners. So it would appear that its governmental structure is prescribed by R.S. 40:117-1 et seq. , originally enacted as L. 1884, c. 140, the provisions of which, it will be noted, are rather sparse, and the later statute known
as the "Commission Form of Government Law," or more commonly as the Walsh Act, R.S. 40:70-1 et seq., L. 1911, c. 221, and the general laws applicable to all municipalities.
The following facts were found by the court below at the second trial, which we hold are amply supported by the evidence:
In 1947 one Charles M. Cramer was a member of the borough board of commissioners and director of revenue and finance. He also was, nominally at least, tax collector, although substantially all of the duties of this office were performed by assistants. (In passing, we comment that there may well be doubt as to his right to hold the office under chapter 117 of Title 40 where an elected tax collector is provided for (R.S. 40:117-2), or even under the Walsh Act (see R.S. 40:72-7), but we think it unnecessary to decide the question.) At a meeting of the board of commissioners held March 21, 1947 he announced that he had appointed the defendant as assistant tax collector, water clerk, sewer clerk and tax search officer.
A few days earlier the defendant had made written application to the plaintiff for a fidelity bond covering her as "Assistant Tax Collector," in which application she stated that, in consideration of the execution of the bond applied for, she promised to pay the annual premium therefor and for any continuation thereof and agreed
"to protect and indemnify the Company against any loss, damage or expense including court costs and counsel fees or any liability therefor incurred by it by reason of the execution thereof. Any payments made in good faith by the Company on account of any such liability, whether or not it is actually liable therefor, shall be conclusive evidence of any liability thereunder."
The bond was issued on March 15, 1947, for a one-year term, and thereafter renewed for the two following years. The defendant's office was described therein as "Assistant Tax Collector" and the undertaking was properly conditioned that the defendant "shall well and faithfully perform all the duties of his (sic) said office." She continued in the office until
her resignation on September 15, 1949, and had various people assisting her ...