
    Lydia J. Roberts, App’lt, v. Stuyvesant Safe Deposit Co. of the City of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    1. Safe deposit company—Extent of obligation to depositobs.
    A safe deposit company is not under obligation to protect the_ property of one of its depositors from an officer of the law having a warrant to take possession of it.
    2. § ame—What does not impose liability dpon.
    It is not liable to its depositor if the officer exceeds the power given by his warrant and takes possession of other property which he is not authorized to. Daniels. J., dissenting.
    Appeal from judgment dismissing plaintiff’s complaint, entered after a trial by the court without a jury.
    
      Ira Shaffer, for app’lt; Joseph C. Jackson, for def’t.
   Van Brunt, P. J.

It may not be necessary to add anything to what has been said in his opinion by the learned, judge who tried the cause in the court below.

In this opinion has been clearly defined the rights and obligations of the parties arising from the hiring of the safe from which the securities in question were taken.

It is there stated that it was the duty of the defendant to. guard the safe and its contents against the approaches or attacks of others who had no legal right to open it or to-interfere with its contents, that any negligent omission of reasonable care in this regard, any failure to supply proper means and agencies to protect and guard the property against illegal approach would be a breach of the duty and obligation which the defendant owed to the plaintiff as a. hirer of a safe.

The only question is have the defendants violated any of these obligations.

When the officer of the law arrived with the authority of the law and demanded admission to the premises, where the safe hired by the plaintiff was situated, in case such admission was refused, the officer not only had the right to break his way into the premises, but the persons refusing admittance and resisting the officer in the execution of his duty would have been guilty of a misdemeanor and punishable therefore, in the manner prescribed by law.

The officers and employees of the defendant were not. bound to resist the officers of the law in the execution of the warrant which they held, not only because such resistance, would have been useless, but it would also have been criminal.

With the "manner in which the officers of the law executed the process entrusted to them, the defendant had nothing to do.^ __

They broke open the safe of the plaintiff and took away the property found ' therein, and if they acted in excess of' the warrant which they held, in taking away property not. described in the warrant, the defendant cannot be held responsible for the trespass which these officers committed,, p.ndjvhich thejdef endant vwas powerless to prevent.

But it is said that the defendant should have notified the. plaintiff so she could have pursued her property.

Conceding that the defendant was bound to do so, and that it failed in this duty, how has the plaintiff been damaged by this omission.

Within a short time after this seizure, the plaintiff was made aware of it, and for two years thereafter, the property remained in the hands of different officers of the law.

The plaintiff then had notice in ample time to assert her rights and to re-claim the property taken, and she lost no rights whatever by the failure of the defendant to give her prompt notice. Not having lost any rights she has not sustained any damage by this omission of the defendant.

We are of the opinion therefore, that for the foregoing reasons, and those stated in the opinion of the court below, that the defendant has not failed ha any duty or- obligation which it owed to the plaintiff whereby she has sustained any loss or damage.

We do not express any opinion as to the effect of the attachments levied or attempted to be levied on this property, as it does not seem to be necessary in view of the conclusion at which we have arrived in reference to the first-branch of the case.

The judgment appealed from should be affirmed, with costs.

Brady, J., concurs.

Daniels, J. (dissenting.)

The case was disposed of at the trial on the ground that the seizure of the securities, under the search warrant, excused the defendant and relieved it from liability. For the attachment of the securities by the sheriff was a fact going no further than to mitigate the damages in case a liability existed. If the suit had been decided on this ground, the plaintiff would have recovered something even if it had been no more than nominal damages, if the court considered the defendant liable at all. The controlling view of the case must, therefore, have been that the defendant was not liable, under the facts presented by the proof. But this conclusion does not follow from the fact that the officer acted under a search warrant. For the warrant authorized the seizure of no more of the plaintiff’s property, than the thirteen one-thousand five-twenty United States bonds. He had no warrant or authority to take either the money or other securities in the box, and took them only for the reason that it was unsafe to leave then exposed and unprotected as they would have been, after the deposit safe, and the box containing the money and the other securities had been broken into and demolished. As to this money and these securities the officers of the defendant were legally bound to interpose for the plaintiff’s protection. While they neither could, nor should have prevented the execution of the search warrant, they should have taken charge of and secured for the plaintiff, the money and property that warrant did not direct the officer to take, and which he did not design to take under the warrant. The officers of the company owed the plaintiff the duty of exercising care for the protection and preservation of her property

And if they had performed that duty as they should have done they would have acquainted themselves with the contents and authority of the warrant, and at least have remonstrated against anything being taken beyond the mandate of the warrant, by the officer executing it, which would without doubt have resulted in all the money and the other securities being left in the custody of the company, whose duty it was to secure and preserve it for the plaintiff. The officers of the company wholly omitted the observance of that duty. And when the officer having the warrant to execute attempted to obtain the property and make the seizure his warrant authorized him to make, they abandoned the whole of the property to him, leaving him to do what they should have done themselves, which was to act as the custodians and preservers of all the property contained in the box and not mentioned in the warrant. The principle on which this part of the case depends is important. And if it is not enforced against the defendant, the safety and utility of safe deposit companies must in a great degree be undermined and impaired. While their officers are bound to submit to the mandates of legal authority they are still as custodians of the depositor’s property, bound to use care and diligence to see that the authority is not transcended and made a pretence only of spoliation and plunder. That the defendant’s officers failed in this case to do, and so far as the plaintiff sustained loss as the sole result of that failure, ghe should have been allowed to recover. And to give her the opportunity still to do so, the judgment should be reversed, and a new trial ordered.

Brady J.

When the officer in performance of his duty seized the box and by violence, the defendant was absolved from all obligations by the seizure and was only liable for what was not taken away. The defendants are not required to combat persons representing the administrative power of the county or state. It is only when their possession is complete—lawfully so, that they continue to be liable. I concur in the views of the presiding justice.  