183 N.E. 505 | NY | 1932
The complaint in its third cause of action alleges the breach of the condition of a bond "purporting" to be executed by the defendant National Surety Company, and having "the semblance and appearance" of being a properly executed and duly authenticated instrument of the defendant. The plaintiff after examination accepted the bond, relying upon its "appearance of authenticity." The plaintiff now seeks to hold the defendant for his consequent damage, upon an allegation that it was the result of the carelessness and negligence of the defendant in permitting "fully executed forms and documents by which its bonds and undertakings are customarily authenticated to lie about and be exposed in its offices thereby rendering such forms and documents available to strangers and to those having no authority to make use of the same * * * and by affixing the same to instruments bearing the title or designation of said defendant National Surety Company, to give to said instruments the semblance and appearance of being properly executed and duly authenticated instruments of said defendant." The defendant has moved to strike out the cause of action. The motion has been denied in the courts below.
The plaintiff "might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue" (Palsgraf v. Long Island R.R. Co.,
It is true that in some cases a person or corporation may be held liable upon a forged or stolen certificate or other instrument where such instrument is actually authenticated and delivered by a person clothed with *304
authority to issue or deliver such instruments and to make representations as to their authenticity. (Fifth Avenue Bank v.Forty-second Street G.S.F.R.R. Co.,
The second cause of action pleaded in the complaint seeks recovery on the instrument itself on such grounds. That cause of action has not been attacked and we do not consider its sufficiency or scope. If any negligence on the part of the defendant has so clothed others with apparent authority to act for it that the defendant is estopped from denying their authority (see Gutfreund v. East River Nat. Bank,
The order should be reversed, with costs in all courts, and the motion to strike out the third cause of action granted. The certified question should be answered in the negative.
POUND, Ch. J., CRANE, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Ordered accordingly. *305