Plummer v. Bankers Surety Co.

101 N.Y.S. 529 | N.Y. App. Term. | 1906

Fitzgerald, J.

Action upon the statutory bond of an auctioneer, which bond was in full force in December, 1904, at which time George E. Shaw and George Plummer were engaged in a copartnership for the purpose of selling goods at auction. Plaintiff’s silverware was sold at their sales, at one of which she was present, and about the sum of $200 was realized from the sale of her' property. This money has not been paid over, and action is brought against the surety to recover upon the bond for the alleged breach of the principal’s contract. At the close of plaintiff’s ease, upon motion, judgment for defendant was granted, which ruling was duly excepted to and the correctness of that ruling is challenged upon this appeal. No reasons were given for the court’s decision, but we think we are justified in assuming that it was based upon an assumption by the learned trial justice: that, as matter of law, demand upon the principal should have been pleaded and proven as a condition precedent to the enforcement of liability of the surety and, as matter of fact, that no such demand was made. It was incumbent upon the auctioneers to pay over to their consignor the proceeds of the sale; and, upon their default in this respect, the condition of the bond was violated and the liability of the obligor immediately attached. Gregory v. United States Fidelity & G. Co., 45 Misc. Rep. 112; Epstein v. United States Fidelity & G. Co., 29 id. 298; Wilson v. Field, 27 Hun, 47. These cases appear to be authority for the proposition that demand was not necessary and appellant has not called our attention to any decisions holding to the contrary; but, assuming that it was necessary, the uncontradicted testimony is that the money was asked for. It may well be that the alleged dual agency of plaintiffs husband places him in a peculiar posi-. tion; and, were he to assert a claim against either of the alleged principals, public policy, upon the establishment of such fact, would bar recovery. These statutory principles may not, however, be invoked to defeat plaintiff’s claim for, as to her, no question of agency arises.

Gildersleeve and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.