McKenzie

This is an action to recover $1,200 damages for alleged official misconduct by defendant McKernzie, as treasurer of the city of Fresno. The defendant James is sued as a surety on McKenzie’s official bond. Judgment went for defendants in the court below, and plaintiff appeals from the judgment and from an order denying a new trial.

The alleged misconduct consists in the refusal by McKenzie to pay a certain warrant for $1,200 drawn on him by the city clerk, and payable out of the sewer fund of said city, and in paying to another person money of said fund, which, as plaintiff claims, should have been, paid to plaintiff on said warrant. There is not much difference between the parties as to the facts. Plaintiff’s grantor, McMurtry, during the years 1893 and 1894, had a contract with the city of Fresno •for furnishing water for flushing the sewers of the city, for which he was to be paid $400 per month out of the sewer fund. He filed with the clerk of the city his demand under this contract for $1,200, alleged to have been due and unpaid for the months of October, November and December, 1893; and afterward, and prior to January 22, 1897, he assigned the contract and the said demand to…