174 A.D. 458 | N.Y. App. Div. | 1916
The defendant is a safe deposit company in the city of New Fork engaged in the business of renting safes in its vaults to those who may desire to use them. In September, 1904, and in February, 1905, plaintiff and her son, Harold Gf. Holler, rented two safes in defendant’s vaults, and as to each one the said plaintiff and the said Harold Gr. Holler (but not this defendant) signed an agreement in the following words: “ Should this safe be rented by two or more persons, it is understood and agreed that in the event of the death of either, the survivor or survivors are to have the privilege of free access.” During the lifetime of Harold Gr. Holler, who died November 23, 1915, he and the plaintiff both enjoyed free access to said safes, and both, as it is alleged, from time to time deposited therein securities and personal property belong
The plaintiff rests her claim upon the agreement between herself and Harold G. Holler, now deceased, which has already been quoted. It will not be necessary at present to pass upon the merits of this claim further than to suggest that it is extremely doubtful whether that agreement gave the survivor of the two signatories either title to or exclusive right to possession of such securities as might be in the safes when one of the signatories died. (See Mercantile Deposit Co. v. Huntington, 89 Hun, 465.) Nor do we consider it necessary to consider at this time the relation which defendant bears and the duty which it owes to the true owner of the securities in the safes. Although the cases are not altogether in harmony upon that question, it is clear that to some extent at least a safe deposit company stands in the relation of bailee respecting prop
In National Safe Deposit Co. v. Stead, Mr. Justice Lamar, writing for the court, and speaking of a claim somewhat similar to that asserted by the plaintiff here, said: ‘ ‘ Both in law and by the express provisions of the contract, the company stood in such relation to the property [i. e., the property deposited in a safe] as to make it liable if, during the lifetime of the owner, it negligently permitted unauthorized persons to remove the contents even though it might be under color of legal process. * * * After his death it would be likewise liable if it permitted unauthorized persons, be they heirs, legal representatives or joint renters, to take the property of the decedent.” As one of the authorities sustaining this proposition the court cited Roberts v. Stuyvesant Safe Deposit Co. (supra). The case of People v. Mercantile Safe Deposit Co. (supra), recently decided by this court, holds nothing to the contrary. It dealt with an attempt by the State to collect, a penalty under the Transfer Tax Law because the company had permitted one of two joint renters to have access to a safe after the death of the other joint renter, and did not deal at all with the right of unrestricted access of one of such joint renters as against the legal representatives of a deceased corenter, and even in that case it was recognized that the relation of a safe deposit company to the property deposited in one of its rented safes was to some extent that of a bailee, although the precise relation it was not necessary to define. The defendant, therefore, is not wholly unjustified in its apprehension as to the liability which might be forced upon it if compelled to comply with the order now under review.
We have described the order appealed from as a mandatory injunction and such it clearly is. It is true that in form it merely “ restrains ” the defendant from preventing plaintiff’s free access to the safes during the pendency of the actions, but this is mere verbal circumlocution for “ commanding ” defendant to permit plaintiff to have free access, for such she can
The order appealed from was wholly unauthorized and is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., McLaughlin and Dowling, JJ., concurred; Smith, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.