Baer v. United States Lines Co. , 37 N.Y.S.2d 7 ( 1942 )

Watson, J.

This action is brought to recover a sum of money deposited by plaintiff, then a German national, with defendant at Karlsruhe, Germany, December 6, 1938, for a steamship ticket for the passage of plaintiff and his wife on defendant’s steamer scheduled to sail from Hamburg about November 29, 1939; and a further sum deposited for “ board money,” that is, expenses on board the steamer. No ticket was ever issued to plaintiff, and defendant, owing to war conditions, canceled its sailings.

Since no ticket was ever issued the deposit never baeame either passage money or board money. Therefore, the German law as to refund of such moneys was inapplicable; nor could there be any applicable provisions of a nonexisting ticket. Plaintiff was entitled, therefore, to the repayment of his deposit as for money had and received. He was not required to demand such repayment in Germany; having made demand in New York he is entitled to the value of the reichsmarks in our currency. (Kassel v. N. V. Nederlandsch Amerikaansche, etc. 177 Misc. 92.)

Inasmuch as the Appellate Term reversed the order striking out the first, second, third and fifth defenses, the motion made at the trial to strike out the same defenses must be governed by the decision of the- Appellate Term and is accordingly denied.

The value of the money deposited by plaintiff with the defendant, both as of the time of the deposit and on the date of the demand for its repayment, is found upon the evidence to be $464, for which, with interest from June 26, 1940, judgment is directed in favor of the plaintiff.