Zander v. New York Security & Trust Co.

It is alleged by the complaint, and admitted by the demurrer, that on or about July n, 1901, the plaintiff deposited with defendant the sum of $500, and received therefor the following certificate or receipt:

“The New York Security and Trust Company, New York, July 11, 1901, has received from Caroline Zander the sum of five hundred dollars, of current funds, upon which the said company agrees to allow interest at the annual rate of three per cent, from this date, and on five days’ notice will repay, in current funds, the like amount, with interest, to the said Caroline Zander or her assigns, on return of this certificate, which is assignable only-on the books of the company.”

Then followed provisions as to the reduction or discontinuance of interest, not material here.

Plaintiff always remained the owner of the certificate; has never assigned it, or any part thereof, or in any way indorsed or transferred it, or any interest therein. Before August 9, 1901, she lost or inadvertently destroyed the certificate, and, though she has diligently searched, she has been unable to find it, and on August 9, 1901, she notified defendant of the loss of the certificate. She has duly demanded of defendant the issue of a new certificate, or the payment of the amount of the deposit. The demurrer is stated to be interposed merely for the purpose of enabling the defendant to insist that the plaintiff shall be required to give the security specified in section 1917, Code Civ. Proc. That section refers to lost negotiable paper., and the question which presents itself is, therefore, whether or not the certificate of deposit given by defendant is negotiable. Section 20, c. 612, Daws 1897, known as the “Negotiable Instruments Daw,” declares that an instrument, to be negotiable, “must be payable to order or to bearer,” and in this respect is merely declaratory of the law of negotiable paper as it existed before the passage of the statute. The papers which were before the court in the cases principally relied' upon by defendant conformed to the foregoing definition, and in each case the decision turned upon the fact that the lost receipts were payable to “order,” which circumstance was held to render them negotiable instruments, and to require that indemnity be given before judgment upon them could be rendered. Frank v. Wessels, 64 N. Y. 155 ; Read v. Bank, 136 N. Y. 454 , 32 N. E. 1083 , 32 Am. St. Rep. 758 . The receipt or certificate in the present case is not negotiable. The money represented by it is payable, not “to order or bearer,” but to the plaintiff “or her assigns.” It is therefore what is known to the law as a “nonnegotiable instrument.” In an action upon a lost or destroyed instrument of this description, it is not necessary that the plaintiff should give or tender indemnity. Wright v.

Demurrer overruled, with costs and extra allowance, with leave to withdraw demurrer and answer within 20 days upon payment of costs.