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Plummer v. Bankers' Surety Co.

101 N.Y.S. 529 Court N.Y. App. Term Decision date 1906-12-11 English

Delivered by FITZGERALD, J.

Contents

Majority

p. 529
PLUMMER v. BANKERS’ SURETY CO. et al.
(Supreme Court, Appellate Term.
December 11, 1906.)

Headnote

1. Auctions and Auctioneers—Proceeds of Sale—Payment—Bond.
Where plaintiff's goods were sold by certain auctioneers, it was their duty to pay over the proceeds of the sale, and their default in so doing constituted a breach of their bond, creating an immediate liability thereon.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Auctions and Auctioneers, § 12.]
p. 530
2. Same—Demand.
Where, after a sale of plaintiff’s silverware by defendants, as auctioneers, plaintiff asking for the proceeds of the sale, her request constituted a sufficient demand to put the auctioneers in default for failure to pay over the amount due.
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Eugenie Plummer against the Bankers’ Surety Company and another. From a Municipal Court judgment in favor of defendant surety company, plaintiff appeals. Reversed, and new trial ordered.
Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
William D. Sporborg, for appellant.
White & Blackford, for respondent.

Action upon the statutory bond of an auctioneer, which bond was in full force in December, 1904, at which time George E. Shaw and George Plummer were engaged in a co-partnership for the purpose of selling goods as auction. Plaintiff’s silverware was sold at their sales, at one of which she was present, and about the sum of $200 was realized from the sale of her property. This money has not been paid over, and action is brought against the surety to recover upon the bond for the alleged breach of the principals’ contract. At the close of plaintiff’s case, upon motion, judgment for defendant was granted, which ruling was duly excepted to, and the correctness of that ruling is challenged upon this appeal.

No reasons were given for the court’s decision, but we think we are justified in assuming that it was based upon an assumption by the learned trial justice that as matter of law demand upon the principal should have been pleaded and proven as a condition precedent to the enforcement of liability of surety, and as matter of fact that no such demand was made. It was incumbent upon the auctioneers to pay over to their consignor the proceeds of the sale, and upon their default in this respect the condition of the bond was violated, and the liability of the obligor immediately attached. Gregory v. United States Fidelity Co., 45 Misc. Rep. 113 , 91 N. Y. Supp. 595 ; Eppstein v. Same, 29 Misc. Rep. 298 , 60 N. Y. Supp. 527 ; Wilson v. Field, 27 Hun, 47 . These cases appear to be authority for the proposition that demand was not necessary, and appellant has not called our attention to any decisions holding to the contrary, but, assuming that it was necessary, the uncontradicted testimony is that the money was asked for. It may well be that the alleged dual agency of plaintiff’s husband places him in a peculiar position, and were he to assert a claim against either of the alleged principals public policy upon the establishment of such fact would bar recovery. These statutory principles may not, however, be invoked to defeat plaintiff’s claim; for as to her no question of agency arises.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.