Opinion
March 10, 1932.
Appeal from the Municipal Court, Borough of Manhattan, Eighth District.
Mathias Naphtali, for the appellants.
Max Brofman, for the respondent National Surety Company.
Evans, Hunt Rees [H. Bradley Moore of counsel], for the respondent London and Lancashire Indemnity Company of America.
Section 63 of article VI of chapter 14 of the Code of Ordinances of the city of New York contemplates that the beneficiaries of the bonds therein required to be filed are those whose property is intrusted to the licensee. Otherwise, the bonds would confer a cause of action upon no one and the filing would be a futile act. An action on such a bond is one upon a contract and, therefore, is within the jurisdiction of the Municipal Court. (Mun. Ct. Code, § 6, subd. 1.)
The bond of the National Surety Company on its face was given pursuant to the Code of Ordinances applicable to expressmen, and one of the conditions stated is that the principal shall comply in all respects with the laws of the State of New York, and faithfully perform the duties and obligations pertaining thereto. The law of the State of New York is made up of the common law as well as the statutes; in the absence of a statute fixing the responsibility of the expressman, a common-law carrier, he is obligated to carry safely; and non-performance of the condition was shown by plaintiffs' evidence.
Judgment as far as appealed from reversed, and a new trial ordered, with thirty dollars costs to appellants to abide the event.
All concur; present, LYDON, FRANKENTHALER and UNTERMYER, JJ.