The opinion
Tappen, J.,
dissenting. The defendant, while sheriff of Kings county, having the custody and being the keeper of the common *340 jail, presented, from time to time, Ms accounts for the board of persons confined therein, including his fees for receiving and discharging such persons, to the supervisors, who audited such accounts, and the defendant was paid the amounts thereof.
It is now claimed by the plaintiffs that such accounts were fraudulently overstated by the defendant, and that a large sum was charged for persons who. never were so committed, boarded or discharged, and this action is brought to recover back the amount of such overcharges, on the ground that the defendant’s accounts were fraudulent.
The defendant’s answer admits the auditing of his accounts, and that he was paid the amounts thereof, and denies the other allegations. He further alleges that the cause of action did not accrue within one year before the commencement of the action. To this latter defense the plaintiffs demurred, and had judgment in their favor at the special term, and the defendant brings this appeal therefrom.
By chapter 733 of the Laws of 1871, section 2, it is provided that “no action shall be brought against any sheriff upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, unless commenced in one year from the time the cause of action shall have accrued.” It will be observed that tMs was an official account of the defendant as sheriff against the county. The duties of sheriff are largely performed by deputy and by the assistance of others, and this is particularly the case in a large and populous county. His liability- for any fraudulent charges against the county would be good ground of an action against him during any period of time not barred by statute; but the intent and purpose of the statute, limiting the time for bringing suit to one year, was to enable both the sheriff and the sureties on his official bond to determine their liabilities within that time. Cummings v. Brown, 43 N. Y. 514 ; 19 Wend. 383 .
This action is brought after the time so limited. It being the sheriff’s duty to receive and discharge from, and to maintain at the jail all persons committed thereto, the accounts which are now questioned were for services arising out of his official duty.
I am of opinion that the defendant, in presenting his accounts and vouchers to the plaintiffs, and in having them audited, did so as sheriff and not as a private individual, or under color of office, and hence, that the statutory prohibition applies to this action.
*341 In Roe v. Sherwood, 6 Johns. 107 , a justice of the peace being sued for malicious .prosecution, it was held that he was sued for an act done by virtue of his office.
To prevent the statutory bar from being held applicable, it will be necessary, also, to hold that the defendant’s accounts, so far as they are correct, were presented by virtue of his office, and so far as they were excessive, that they were not by virtue of his office. I do not think the distinction can be maintained.
The statute of limitations is a statute of repose, and in the case of public officers, effect is to be given to it for such purpose.
The judgment of the special term, sustaining plaintiffs’ demurrer, should be reversed.
Order affirmed.