13 Misc. 88 | New York Court of Common Pleas | 1895
Under a contract between it and the Continental Bank, the defendant, a corporation organized under the laws of the state of New York, had installed one of its “call” instruments at the place of business of the bank in the city of New York. On November 13, 1891, the plaintiff, a bookkeeper employed by the bank, and with its consent availing himself of the “call” instrument, summoned one of the defendant’s employés, to whom he delivered a sum of money, with directions to deposit the same with the Bank of the State of New York, which was situated several blocks distant. The messenger, through carelessness, lost the money, and the plaintiff thereupon brought this action for indemnity. The defendant disputed its liability, assigning as grounds that its messenger’s services were not employed in the business of the Continental Bank, but in the plaintiff’s personal business. In other words, the defendant contended that, because it had held no contractual relation with the plaintiff, it owed him no duty for the breach of which an action would lie. The trial court ruled against this contention. A verdict was rendered for the plaintiff, upon which judgment was entered against the defendant The judgment was affirmed at general term in the court below (27 N. Y. Supp. 142), and from the judgment of affirmance the defendant has appealed to this court.
Upon the trial it appeared that the defendant was engaged in the business of supplying messenger service for the use of all persons who chose to avail themselves of its facilities, and were willing to pay the rates, and to submit to the conditions; rules, and regulations
The gravamen of the complaint is the neglect of the defendant to deliver a sum of money which it had received1 under an alleged contract of carriage between the plaintiff and the defendant. Hence the cause of action alleged was ex contractu. This is apparent from the allegations that “the defendant, through its lawful and authorized representative, received from the plaintiff the sum of one hundred and seventy-five dollars ($175.00) lawful money of the United States of America, to be delivered for deposit in the Bank of the State of New York, for a good and valuable consideration”; and “that thereupon, in consideration thereof, the defendant undertook and promised the plaintiff to transport and deliver the same to the Bank of the State of New York,” which it “negligently and carelessly omitted to do.” Proof of the alleged contract was, therefore, a constituent of the cause of action, without which the cause of action was not apparent. True, at the time of the several motions for dis