140 N.Y.S. 612 | N.Y. App. Div. | 1913
Action to recover upon a statutory bond given by the defendant Polowe, Mogilewsky & Werner, a domestic corporation, as principal, and the United Surety Company as surety. At the trial there was no dispute between the parties as to the facts. They were, in substance, as follows: Prior to the 30th of July, 1907, Polowe, Mogilewsky & Werner were engaged in the city of New York in selling steamship tickets for transportation to foreign countries, and in connection therewith received deposits of money for transmission; on that day it, as principal, and the surety company, as surety, pursuant to chapter 185 of the Laws of 1907, executed a bond to the People of the State of New York, in the penal sum of $15,000, conditioned for the faithful holding and transmission to foreign countries of moneys delivered to it for that purpose; on the
The surety company contends that its liability on the bond was terminated on September 1, 1908 — thirteen days prior to the time the money sued for was deposited — not only by reason of the written notices which it gave, but also by virtue of the 1908 statute. The respondent contends, and this seems to have been the view adopted by the trial court, that since no time was mentioned in the bond when it would terminate, and there being no provision in the statute upon the subject, it continued and remained in force until a new bond was given; that no new bond was given, and plaintiff was, therefore, entitled to recover.
The statute of 1908, while in terms purporting to amend the statute of 1907, in effect repeals it. As I understand the rule, it is that where a later statute covers the whole subject-matter of a prior one, and also embraces new provisions, the prior statute will be deemed repealed. (Matter of New York Insti
The defendant’s liability for deposits received after September 1, 1908, was, as it seems to me, not only terminated by virtue of the statute, but also by reason of the written notice given. Even though no time be mentioned in the bond, a surety can cancel it upon reasonable notice to the principal. (Emery v. Baltz, 94 N. Y. 408; Agawam Bank v. Strever, 18 id. 502; Picker v. Fitzelle, 60 App. Div. 451.) Polowe, Mogilewsky & Werner had only paid the premium on the bond to September 1, 1908, and over two months before that time the surety company gave written notice that it would not continue the bond after that date. No premium was thereafter paid, and both principal and surety acted upon the assumption that the bond was canceled and terminated on September first.
It does not appear that any other creditor of Polowe, Mogilewsky & Werner has come in and made himself a party
Ingraham, P. J., Laughlxn and Clarke, JJ., concurred; Scott, J., concurred on second ground.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.