Majority
p. 772Giovanni Carozza, Appellant, v. Antonio Russo, Defendant, Impleaded with The People’s Surety Company of New York, Respondent. First Department, November 3, 1911.
Headnote
Banks — deposit of money for transmission to foreign country — liability of surety —• action at law.One who has intrusted money to a banker for transmission to a foreign country may, on the failure of the depositary to fulfill his obligation, maintain an action at law against the surety, unless there are numerous other creditors and the claims against the surety exceed the aggregate sum for which it is liable. .It is only in the latter case that a claimant is required to sue in equity.
Appeal by the plaintiff, Giovanni Oarozza, from an-order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on «the 17th day of February, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
Michael Schneiderman, for the appellant.
Herbert McKennis, for the respondent.
This is an appeal from the determination of the- Appellate ■ Term reversing a judgment of.the Municipal Court against the defendant People’s Surety Company of New York.
The respondent is sued as the surety, upon a bond of $15,000, for Antonio Russo, a banker, to whom the plaintiff intrusted the sum of $100 for transmission to Italy, and who failed to transmit said sum or to return it to plaintiff. . The facts are
p. 773
similar in many respects to those considered by this court in Guffanti v. National Surety Co. ( 133 App. Div. 610 ; affd., 196 N. Y. 452 ) and Musco v. United Surety Co. ( 132 App. Div. 300 ). The plaintiff sufficiently proved the delivery of the money to Russo; his undertaking to transmit it; his failure to do so, and his absconding without having repaid the sum. Under these circumstances the liability of the defendant is established under the cases cited. The only defense attempted, and one which has commended itself to the learned Appellate Term, is the contention that -while plaintiff may have a perfectly valid claim against respondent, it is one which may not be prosecuted in an action at law, but may be recovered only in an action in equity. Hence it is argued that, since the Municipal Court has no equitable jurisdiction, it cannot enforce plaintiff’s claim. This contention rests upon certain expressions of this court and the Court of Appeals in the course of the opinions rendered in Guffanti v. National Surety Co. (supra) and Illinois Surety Co. v. Mattone ( 138 App. Div. 173 ). The respondent’s contention upon this point fails because it is built upon excerpts from opinions without regard to the particular facts before the court in the cases cited, or to the questions which the court was therein called upon to consider. It may be said of the respondent’s argmnent, as was recently said by the Court of Appeals: “Doubtless there are isolated quotations from the charter as it was then assumed to .be and expressions of opinion by the learned judge writing the opinion,[1] which construed by themselves might inferentially support the position of the present appellant [respondent], but, as is well understood, this is not the proper method by which to determine the scope of a decision. The opinion must be interpreted as a whole, and whatever was said must be tested by reference to the actual question then before the court.” (Hogan v. Board of Education, 200 N. Y. 370 .) If the opinions in Guffanti v. National Surety Co. and Illinois Surety Co. v. Mattone are carefully read in accordance with the foregoing rule, it will be perceived that there was present in each of these cases a controlling fact, absent in the present
* See Gunnison v. Board of Education ( 176 N. Y. 11 ). —[Rep.
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case, which led to the conclusion that the liability of the surety . should be determined in a suit in equity, rather than by numerous actions at law. That fact was, as it was alleged, that in each case the claims upon the indemnitor largely exceeded- the aggregate sum for which it was liable as surety. This fact led the court to hold, in those cases, that the amount of the surety’s . liability should be treated as a fund for the benefit of all claimants, .to be distributed among them pro rata. Hence, where that fact appeared it was considered that the fund should be distributed in equity, and that separate actions at law by individual claimants should be stayed. In the Ouffanti case this court, said: “ Undoubtedly a single creditor, if it did not appear that there were others, might maintain ■ an action upon the bond for the satisfaction of his individual claim.” In the same case the Court of Appeals said: “The condition of the bond read in connection with, section four of the act would seem to give a person who has deposited. money, which is subsequently embezzled, a right of action upon the bond in his individual capacity.” There is nothing in the nature of the plaintiff’s claim which precludes its prosecution at law, and it does not appear anywhere in the case that the claimants against the surety aro numerous, or, in fact, that there are any claimants at' all except this plaintiff. There is, therefore, no reason -for relegating plaintiff to' an equity suit or denying him his remedy at law. This -conclusion finds support in the opinion recently handed down.by the Appóllate Division in the Second Department in Alessandro v. People’s Surety Co. ( 143 App. Div. 145 ).
The determination of the Appellate Term must be reversed and the judgment of the Municipal Court affirmed, with costs to the appellant in this court and in the Appellate Term. ■
Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred. ■
Determination reversed and judgment of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.
Cases cited
- Guffanti v. National Surety Co. 133 App. Div. 610 p. 773
- Guffanti v. National Surety Co. 196 N. Y. 452 p. 773
- Hogan v. Board of Education 200 N. Y. 370 p. 773