182 A.D. 262 | N.Y. App. Div. | 1918
Appellant’s chief point is that the court should construe the appellant’s bond so that its clause, the termination of the surety’s liability hereunder for any reason, should mean the end of the bonded period, or the “ termination of the bond.” This is the more difficult because appellant has itself distinguished these expressions in this bond. In limiting the period of the risk of Monzet’s acts of personal dishonesty or embezzlement, it states after the 5th day of February, 1912, and “ before the termination of this bond.”
Appellant’s contract has no clause that limits its liability for present or past acts, even if not found out. There is such a right as to Monzet’s subsequent acts, if Monzet should be
Although our Statute of Limitations, in respect to relief for fraud, does not begin to run till the fraud is discovered (Code Civ. Proc. § 382, subd. 5), there is no public policy that prevents an insurer from fixing a time limit for its liability for secret - breaches of trust in a bank, which often long escape detection. Indeed, a clear and proper clause of that kind tends to require stricter scrutiny over the employee’s accounts and transactions, and thus to benefit and promote diligence in the oversight of trusted subordinates. But the insurer should use clear and unmistakable terms to cut off liability for delayed claims. It (might express this limit for claims as “ within six months after the period of this.bond,” or, perhaps, “ after this bonded period shall expire from any cause,” or “ within six months after the death, dismissal or retirement of said employe from the service of the employer, within the period of this bond, ,whichever of these events shall first happen ” (Ballard County Bank’s Assignee v. U. S. Fidelity & Guar. Co., 150 Ky. 236); or to make good losses sustained “ during the continuance of this bond, and discovered during said continuance, or within ,six months thereafter, and within six months from the death or dismissal or retirement of the employe from the service of the ' employer ” (California Savings Bank v. American Surety Co. of New York, 82 Fed. Rep. 866); or to-a loss sustained “ and discovered during the continuance of the currency of this bond, and within six months from the employe ceasing to be in the said .service.” (Guarantee Co. v. Mechanics’ Savings Bank & Trust Co., 80 Fed. Rep. 766.)
But appellant’s contract referred to two different events — the “ termination of this bond,” which was its expiration as to future liabilities (as afterward agreed on February 5, 1914) — "and the “ termination of the Surety’s liability hereunder for any reason ”— a vague expression not interchangeable with the former.
The appellant here is not the old time accommodating
A “ liability ” cannot be said to terminate until the insurer can no. longer be held answerable for any matters under its contract. The “ risk ” may be terminated at expiration of the bonded period, or by earlier methods of cancellation. We are not to frame for appellant a new or stricter contract than it has proffered, or to extend that avenue of deliverance which it has not well and distinctly marked.
The contention that plaintiff is not the real party in interest is on the ground that Mr. Gilman became assignee of this claim in suit, although there was no actual assignment made.
The contention that the bank was engaged unlawfully in doing a savings bank business, so that defendant is not liable under the bond, was not in the amended answer, or raised at the trial. Moreover, the evidence does not appear to warrant the .conclusion that defendant held itself out as a savings bank. National banks in the country conduct what is called a savings department, and apparently without objection by the Federal officials supervising such institutions.
I advise, therefore, that the judgment appealed from be affirmed, with costs.
Junks, P. J., and Rich, J., concurred; Mills, J., dissented and voted to reverse the judgment and dismiss the complaint, upon the ground that the action, when commenced, was barred by the failure of plaintiff to present to the defendant the claim within six months after the expiration of the bond period, the provision of the bond in that respect being free from ambiguity and not susceptible of any other reasonable construction, with whom Thomas, J., concurred.
Judgment affirmed, with costs.