
    Guiseppe Sciaballa, Suing on Behalf of Himself and Other Creditors of Gaetano Zingales, Who May Be Similarly Situated and Who May Come in and Contribute to the Expenses of This Action, Appellant, v. Illinois Surety Company, Respondent.
    First Department,
    March 12, 1915.
    Banking—hond securing persons depositing money with agents for foreign transportation — statutes construed — principal and surety— when surety on original bond liable although there has been partial recovery on bond subsequently filed.
    Where a hond was filed by a person engaged in receiving money on deposit in connection with the business of selling foreign transportation tickets, pursuant to chapter 185 of the Laws of 1907, as amended by chapter 479 of the Laws of 1908, a depositor whose deposit was made while the amendment aforesaid was in effect and before the statute was incorporated into the General Business Law by chapter 348 of the Laws of 1910 and the prior statutes repealed, may, after the bankruptcy of the depositary, and after receiving in the bankruptcy proceedings a pro rata share of moneys due on the bond of a surety filed under the remodeled statute, recover on the hond of the surety which was filed at the time his deposit was originally made. By enforcing his rights under the later bond he did not waive his right of recovery on the prior bond.
    The repeal of the former statutes on the enactment of the General Business Law did not cut off a right of recovery on a bond filed under said statutes.
    McLaughlin and Dowling, JJ., dissented.
    Appeal by the plaintiff, G-uiseppe Sciaballa, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of October, 1914, upon the decision of the court dismissing the complaint upon the merits, the facts having been stipulated and the matter submitted.
    
      Samuel Hoffman, for the appellant.
    
      L. Laflin Kellogg, for the respondent.
   Hotchkiss, J.:

The action is a representative one by plaintiff as a depositor with one Zingales to recover on a bond given by Zingales under the law regulating the business of selling railroad and steamship tickets for foreign transportation.

The first legislation on the subject was chapter 185 of the Laws of 1907, which required a bond of $15,000, or cash, to be deposited with the Comptroller by all persons engaged in such business and who in conjunction therewith received money for transmission to foreign countries. By chapter 479 of the Laws of 1908 the act was extended to all such persons who while conducting the business aforesaid received money on deposit. The bond in question was given on August 17, 1908, under the act as thus amended. In the general consolidation of the statutes, which became effective February 17, 1909, the act of 1907, as amended in 1908, and without further change, was incorporated into the General Business Law (Consol. Laws, chap. 20; Laws of 1909, chap. 25) as sections 150 to 154 thereof and the acts of 1907 and 1908 were included in the schedule of laws repealed. The plaintiff’s deposits were made August 22, and November 22, 1909. By chapter 348 of the Laws of 1910 a new article (3a) covering the subject of private banking in cities of the first class was added to the General Business Law, and article 10, containing sections 150 to 154, was repealed, and by chapter 349 of the Laws of the same year sections 150 to 154 were again repealed and a new article 10, containing sections 150 to 154, was added so as to apply exclusively to the business of ticket agents, the two acts working a separation of the business of receiving deposits from the business of selling transportation tickets. Such amendments took effect on September 1, 1910. Under the private banking article (Laws of 1910, chap. 348) there was a new plan of security adopted with respect to private bankers which required a deposit with the Comptroller of securities or money and also a bond. In pursuance of the amendment of 1910, Zingales deposited $10,000 with the Comptroller and gave a bond in the same amount. Sometime before the commencement of this action Zingales was adjudged a bankrupt and the money and bond given under the act of 1910 were delivered to his trustee who collected the amount of the bond. Subsequently plaintiff filed his claim in bankruptcy and received his pro rata dividend. The learned court below held that plaintiff had the right to enforce the bond sued on in this action or the security deposited under the law of 1910 but that he could not have the benefit of both, and having elected to pursue the latter he could not claim under the former.

The first objection to a recovery urged by the respondent is that plaintiff has no right to resort to the bond in suit, because the act of 1907, as amended in 1908, was repealed by the Consolidated Laws before plaintiff’s deposits were made. I think this position is untenable. (McAvoy v. City of New York, 52 App. Div. 485, 488; affd., 166 N. Y. 588; Laws of 1909, chap. 596.)

The remaining question involves the effect of the act of 1910. Did it give plaintiff an additional security, and if so, was his right to resort to it conditional on his election to waive the benefit of the bond theretofore given? In Goldberg v. People’s Surety Co. (162 App. Div. 385) we held: (1) Moneys deposited before the act of 1907, as amended in 1908, and which remained on deposit after a bond had been given under the latter act, were covered by such bond. (2) Moneys so deposited and remaining after the amended law of 1907 became inoperative in consequence of the act of 1910, were still covered by the bond, because of the saving clause in the act of 1910. (See Laws of 1910, chap. 348, § 2.) In the course of his opinion Mr. Justice Clarice took occasion to say that moneys so deposited and remaining constituted a contract liability under the bond that could not be violated by subsequent legislation, but he was careful to add that because of the saving clause, no such legislation had been in fact attempted.

The Goldberg case, while authority for the proposition that this plaintiff may look to the bond of 1910 as well as to that of 1908, does not, however, necessarily decide the question of election which is now raised.

The act of 1910 prohibited any one from thereafter engaging in the business of receiving deposits without first procuring a license, as a condition of which the applicant was required to give bond and security for “ the faithful holding of all moneys that may be deposited with the applicant, * * * and the

repayment of such moneys.” As I have shown, security given under this act inured to the benefit of existing as well as to future depositors. There is not a syllable in the act to indicate that its benefits were intended to be extended to existing depositors only on condition that they should waive the benefit of any security given under any prior act. Perhaps that was what the Legislature meant, but if it failed to say so, and if we are compelled, as I think we are by our decision in the Goldberg case, to construe the language used as extending the benefit of the act to existing depositors, by what right may we say that it was on conditions not expressed in the act itself ?

The doctrine of election applies only where inconsistent rights or remedies are involved. In principle I cannot distinguish the present case from People v. Lee (104 N. Y. 441); Barnes v. Cushing (168 id. 542), and First Nat. Bank v. Story (200 id. 346). These cases all rest upon the principle that where a guaranty covers past as well as future transactions, in order to release the sureties on a preceding guaranty, it must clearly appear that the later bond was given as a substitute for the former, and in the absence of such evidence the principal may resort to the sureties on both bonds, between whom the usual rights of contribution exist.

I think the judgment should be reversed, and that a judgment on proper findings should be entered in favor of the plaintiff.

Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Dowling, JJ., dissented.

Judgment reversed, with costs, and judgment ordered for plaintiff as directed in opinion. Order to he settled on notice.  