Consentino v. . Illinois Surety Co.

Chase, J. The defendant on August 6,1907, as surety, executed with one Antonio G-agliano as principal, a bond to the People of the State of New York, which recites that G-agliano “ Is engaged in or is about to engage in the selling of steamship or railroad tickets for transportation *523 to or from foreign countries, and in conjunction with said business carries on, or is about to carry on, the business of receiving deposits of money for the purpose of transmitting the same or the equivalent thereof to foreign countries, and is required to make, execute and deliver a bond pursuant to Chapter 185 of the laws of 1907.” The condition of the bond is “That if the above bounden Antonio G-agliano shall faithfully and diligently hold and transmit any and all moneys or the equivalent thereof which shall he delivered to it or them for transmission to a foreign country or countries as provided by said Chapter 185 of the laws of 1907 and duly account for and promptly pay over all moneys or the equivalent thereof received by him as aforesaid, then this obligation to he void, otherwise to remain in full force and virtue.” Such bond was received by the comptroller of the state of New York and was duly approved and tiled by him. G-agliano in February, 1907, received from the plaintiff five thousand liras to deposit in the postal treasury of the Kingdom of Italy. At the time plaintiff made such deposit G-agliano gave him, a receipt therefor and said to him: “In a period of four weeks you will receive your bank hook at New York. The hank hook from Borne, from the hank at Borne.” The only testimony in the record by which it is claimed that G-agliano failed to perform the condition of the bond is the testimony of the plaintiff, in which he says that he went to see G-agliano about three weeks after the deposit was made and Gaglianosaid, “Be patient,” and directed him to return the next day; and his further testimony that he returned the next day and that .there were many people in front of Gagliano’s door and his place of business was locked; that he went there many times after that but has never seen Gagliano since. At the close of the evidence both parties asked the court to direct a verdict and the court thereupon directed the jury to find a verdict in favor of the plaintiff for the amount of his deposit. *524 The appellant asserts that the bond sued upon includes in its condition a provision not required by the statute and urges that it should not, therefore, be enforced as a statutory bond. Very many actions upon bonds similar in form to the bond now under consideration have been sustained, although the objection now urged may not have been considered in such actions. (See, -among others, Musco v. United Surety Co., 196 N. Y. 459, and Guffanti v. National Surety Co., 196 N. Y. 452.) The words in the condition of the bond not taken from the language of the statute are, “ And duly account for and promptly pay over all moneys or the equivalent thereof received by him as aforesaid.” The bond in this case was in terms given to comply with chapter 185 of the Laws of 1907 as it existed prior to the amendment in 1908. The words of the bond last quoted constitute the last clause of the condition, and they refer to the moneys mentioned in the preceding clause thereof as received for transmission to a foreign country. The condition of the bond should be read as a whole, and as so read it is not violated unless the principal obligor fails to transmit the moneys received by him to a foreign country pursuant to the agreement with the depositor. If money is received for transmission to a foreign country and the person receiving it fails to transmit it as so agreed, he is hable to account for and promptly pay over the amount thereof or its equivalent received as aforesaid, i. e., received for transmission to a foreign country. If G-agliano transmitted the money of the plaintiff as agreed he performed his principal obligation. The difficulty with the plaintiff’s case is that he has wholly failed to show that G-agliano did not deposit the money in the postal treasury of the Kingdom of Italy. We may surmise that he did not deposit the money in such treasury, but mere suspicions are not sufficient on which to found a cause of action. So far as appears from the record, the money may have been deposited according to the agreement, and *525 it may be in the postal treasury of the Kingdom of Italy at the present time to the credit of the plaintiff. The agreement to obtain a bank book from Rome and deliver it to the plaintiff at New York within four weeks from the time the deposit was so received, was incidental to the main purpose of the parties on which the promise of Gagliano was based. Gagliano left New York in less than four weeks after the deposit was made. The book, if sent, may have been lost. The fact that it has not been delivered to the plaintiff is not, in itself, under the circumstances disclosed, sufficient evidence of default in the condition of the bond to sustain the judgment against the defendant surety. The judgment should be reversed and a new trial granted, with costs to abide the event.