Safian v. Irving National Bank , 116 Misc. 647 ( 1921 )

Bijur, J.

On September 19, 1919, plaintiff purchased from defendant a cable transfer of 7,000 marks for $297.50, plus $7.50 cable expenses, total $305, in favor of Moszek Zelik Safian at Makow, Poland. On January 30, 1920, defendant informed plaintiff that the order had been executed. It developed subsequently that the cable or telegraph company had made a mistake in the address and the money was never delivered to the payee. In October, 1920, plaintiff brought this action for the return of the $305 paid by him, which has been awarded him by the judgment appealed from.

Defendant, appellant, claims either that the complaint should be dismissed or that plaintiff should be adjudged to be entitled only to the value of the 7,000 marks in American money on the date of the institution of this suit. It has been determined in this state that on the purchase of a cable transfer “ The seller engages that he has the balance at the point on which the payment is ordered, and that on receipt of the cable directing the transfer his correspondent at such point will make payment to the beneficiary described in the cable. ” Legniti v. Mechanics & Metals Nat. Bank, 230 N. Y. 415, 420.

No question of reasonable time being involved in the instant case, that consideration need not be adverted to. It is clear that the defendant’s “ engagement ” was not met by it. On ordinary principles governing.the law of contract it seems clear that the plaintiff thereupon has the right to recover back the consideration paid by him.

The question which remains to be determined is whether clauses limiting the defendant’s liability contained in the contract between the parties precludes the remedy sought by the plaintiff. Two provisions of the contract are cited: “ In making cable transfers it is understood that no liability shall attach to us nor our correspondents for any loss or damage in consequence of any delay or mistake in transmitting the message or for any cause beyond our control.” In my opinion this limitation has no application to the instant case but refers to claims of “ loss or damage” in consequence of delay or mistake. Plaintiff makes no such claim here, but sues as upon what is generally called rescission because of defendant’s failure to carry out its contract. It is not sought to impose any liability upon defendant for loss or delay. The relief asked for is a return to plaintiff of the money paid by him, which defendant agreed to transfer to a person named, after failure to perform the engagement.

The second qualifying clause reads: “ If payment for any reason cannot be affected, the bank will not be liable for any sum in excess of the current market value in New York at the time the refund is made.” It is quite clear that the contingency here referred to is not the one developed in the instant case. The payment could very easily have been effected. There is no pretense that the payment was impossible or difficult. It was merely not made because of someone’s mistake or neglect, whether of the defendant’s or its agents we need not discuss in this connection.

Another aspect of the last qualifying clause is that as the express stipulation that the defendant will not be liable for any other than the current market value of the foreign money at the time the refund is made is made to apply to a case where the payment “ cannot be effected,” it indicates by implication that the same limitation is not to be applied in other cases, like the one here present, of failure to pay because of mistake or neglect on the part of defendant or the agencies employed by it.

For the foregoing reasons I think that the judgment should be affirmed, with twenty-five dollars costs.

Delehanty, J., concurs.