Opinion
March 7, 1913.
Edwin Blumenstiel, for the appellant.
Charles Goldzier, for the respondent.
Action to recover upon a statutory bond given by the defendant Polowe, Mogilewsky Werner, a domestic corporation, as principal, and the United Surety Company as surety. At the trial there was no dispute between the parties as to the facts. They were, in substance, as follows: Prior to the 30th of July, 1907, Polowe, Mogilewsky Werner were engaged in the city of New York in selling steamship tickets for transportation to foreign countries, and in connection therewith received deposits of money for transmission; on that day it, as principal, and the surety company, as surety, pursuant to chapter 185 of the Laws of 1907, executed a bond to the People of the State of New York, in the penal sum of $15,000, conditioned for the faithful holding and transmission to foreign countries of moneys delivered to it for that purpose; on the 16th of September, 1907, the bond was filed in the office of the Comptroller of the State of New York, pursuant to the statute under which it was given; on the 23d of May, 1908, chapter 185 of the Laws of 1907 was amended by chapter 479 of the Laws of 1908, which required a new and different bond to be given and filed in the office of the Comptroller on or before September 1, 1908; on the 9th of June, 1908, the United Surety Company gave Polowe, Mogilewsky Werner notice that the bond which it had given under chapter 185 of the Laws of 1907 would not be continued after September first, and would be canceled as of that date; a similar notice was also given to the Comptroller of the State of New York; on the 13th of September, 1908, Polowe, Mogilewsky Werner received from the plaintiff the sum of $204 for the purpose of transmitting the same, or its equivalent in Austrian money, to Maria Vidi at Pincolo, in the Empire of Austria; the money was not transmitted or returned to the plaintiff and this action is brought to recover the same from the surety company upon the ground that it is liable therefor by reason of the bond sued on; Polowe, Mogilewsky Werner did not appear in the action and at the conclusion of the trial judgment was given against the surety company for the amount claimed. It appeals.
The surety company contends that its liability on the bond was terminated on September 1, 1908 — thirteen days prior to the time the money sued for was deposited — not only by reason of the written notices which it gave, but also by virtue of the 1908 statute. The respondent contends, and this seems to have been the view adopted by the trial court, that since no time was mentioned in the bond when it would terminate, and there being no provision in the statute upon the subject, it continued and remained in force until a new bond was given; that no new bond was given, and plaintiff was, therefore, entitled to recover.
The statute of 1908, while in terms purporting to amend the statute of 1907, in effect repeals it. As I understand the rule, it is that where a later statute covers the whole subject-matter of a prior one, and also embraces new provisions, the prior statute will be deemed repealed. ( Matter of New York Institution, 121 N.Y. 234; Barker v. Town of Floyd, 61 App. Div. 95, 96; Heal v. Richmond County Savings Bank, 127 id. 428; Schieffelin v. McClellan, 135 id. 665.) The statute of 1908 was, in all respects, similar to the statute of 1907, except (1) it included among those required to give bonds persons who sold steamship tickets and in connection therewith received money for the purpose of transmitting the same to foreign countries or received money on deposit; (2) it provided that the bond be conditioned not only for the faithful transmission, but for the repayment of such deposits; and (3) that all corporations, firms and persons engaged in such business at the time the statute took effect, should give the bond required "on or before September first, nineteen hundred and eight." Polowe, Mogilewsky Werner, irrespective of the notice which the surety company gave to it, could not receive money on deposit or for transmission after September 1, 1908, until it gave the bond provided in the statute of that year. It did not give such bond, and, therefore, after September 1, 1908, it was in precisely the same position as though it had never given a bond at all. The bond here sued on was terminated on September 1, 1908, by the statute of that year. This the plaintiff was bound to know, and for that reason when he made the deposit on September 13, 1908, he in no way relied upon the bond upon which the liability is here sought to be predicated.
The defendant's liability for deposits received after September 1, 1908, was, as it seems to me, not only terminated by virtue of the statute, but also by reason of the written notice given. Even though no time be mentioned in the bond, a surety can cancel it upon reasonable notice to the principal. ( Emery v. Baltz, 94 N.Y. 408; Agawam Bank v. Strever, 18 id. 502; Picker v. Fitzelle, 60 App. Div. 451.) Polowe, Mogilewsky Werner had only paid the premium on the bond to September 1, 1908, and over two months before that time the surety company gave written notice that it would not continue the bond after that date. No premium was thereafter paid, and both principal and surety acted upon the assumption that the bond was canceled and terminated on September first.
It does not appear that any other creditor of Polowe, Mogilewsky Werner has come in and made himself a party to the action, and, therefore, since the facts are not in dispute, I am of the opinion the judgment should be reversed, with costs, and the complaint dismissed, with costs.
INGRAHAM, P.J., LAUGHLIN and CLARKE, JJ., concurred; SCOTT, J., concurred on second ground.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.