Lewis v. Park Bank , 2 Daly 85 ( 1866 )

By the Court.—Brady, J.

The plaintiff seeks to recover, as the assignee of the Broadway Bank, the damages sustained by the latter, in consequence of the refusal of the defendants to deliver or pay over the money on deposit in their bank belonging to the city and county of New York, to which they were entitled, having been selected as the depositary of such fund by the city chamberlain. The claim for damages seems to rest upon the interest that would have been received upon the loans of the money, or some portions of it, and of which they were deprived by such refusal. There is no doubt that Mr. Devlin, the city chamberlain, as required to do by law (Laws of 1860, chap. 477), selected, in the exercise of his discretion, the Broadway Bank as the place for the deposit of the moneys belonging to the city and county of New York, and that the defendants holding them, as the depositary selected by Mr. Devlin’s predecessor, refused to transfer them to the Broadway Bank. It is not necessary to inquire into the causes of, or reason for, this conduct on the part of the defendants, inasmuch as the decision of the question involved in this case depends upon the abstract right of the plaintiff to recover upon the mere'nomination of the Broadway Bank, as the successor of the defendants, for the purpose mentioned. It cannot be questioned, that the deposit of the funds in the bank, either of the defendants or the Broadway Bank generally, would make the owner of them a creditor of the bank (Chapman v. White, 6 N. Y. 412), and that though the city chamberlain, as legal custodian, determines the place of deposit, the fund is not his; the right of property in it is not changed by his act of deposit, and, that the city and county of New York continues to be the owner. The Broadway Bank, therefore, from the time of its receipt only, would assume all the responsibilities growing out of its undertaking to safely keep it and duly pay all drafts upon it in the mode established by law. In reference, then, to the period for which the loss of interest or damages is claimed, the Broadway Bank had no duty to perform—no obligation to discharge—and no responsibility to bear. The loss of any benefit to be derived from the use of the money while thus detained, was a legal detriment, neither to the Broadway Bank nor to the city chamberlain, but to the owner of the fund. The city chamberlain could not withdraw it save in the manner specifically provided by law or ordinance. He could not, therefore, employ the money in any manner to his personal gain, and if he could not do so, he could not recover for any loss arising from the detention of the money. It may here with propriety be asked, if he could not successfully make such a claim, how is it possible for the Broadway Bank to do it % If the Broadway Bank are to be regarded as public officers at all, which is not admitted, it is as trustees of a fund with which they have no right to meddle, and the accumulations of which they could not appropriate. In addition to these objections it must be said, that if they were entitled to the possession of the moneys from the mere circumstance of their having been selected as the depositary of the funds, it was their duty at once to take measures to obtain it. If their relations to the city chamberlain or to the city and county of New York began upon their selection as the custodians of the fund, they were placed under obligations which required an immediate exercise of their right to secure the fund against any contingency by which it should be endangered. Regarded as public officers, they would be remediless until they entered upon the discharge of their duties, which, as they related exclusively to the keeping and disbursement of the funds to be received, could not commence until the deposit was made in their bank. They were, however*, under no obligation. Their responsibilities commenced when the moneys were deposited with them, and not before. The transfer of the fund to them was one of the duties of the city chamberlain, when he selected them as its custodians. Upon the argument of this appeal it was said, that this was an action which, in its nature, assimilated to the old action on the case, and that if the plaintiff was entitled to the possession of the fund, he could maintain it. This proposition cannot be sustained. There are cases in which a party having a bare possession of goods, which is prima facie evidence of property, may sue a wrongdoer who takes or injures them, although it should appear that the former has not the strict legal title. An action for injury to personalty may also be brought in the name of the person having only a special property or interest of a limited or temporary nature therein; but in this latter case the rule is, the party should have had the actual possession (1 Ohitty’s Plead. 71). The Broadway Bank never had possession of the money and the special property which would result from such possession, imposing, as it would, the care and protection of the fund, never existed. This is not a case either in which the Broadway Bank can sustain the demand made, upon the ground that they were bailees. A bailment is a delivery of a chattel for a specific purpose (Story on Contracts, § 682), and it appears, therefore, that they were not entitled to the possession of the money, by reason of any right of property, general or special, and that their limited interest in it is of no avail, because it was never placed in their custody. Having no general or special property which gave them the right of possession, this action must fail as an action on the case, considered with reference to the rules which govern such litigations. If the Broadway Bank has sustained any damage which does not appear, the maxim damnum absque injuria applies, and this action must fail. Whatever interest they had in the fund was contingent upon their receiving it, and was to commence only when the possesion of it was acquired, as already suggested. The opinion of Justice Cardozo was correct, therefore, and the judgment directed by him must be affirmed.