
    Geneva Erb, Respondent, v. Banco Di Napoli, Appellant.
    Supreme Court, Appellate Term, First Department,
    October Term
    Filed November, 1923.
    Banks and banking — collection of interest on foreign bonds — when owner of lost coupons cannot maintain action against bank acting as agent — section 333 of Civil Practice Act not applicable.
    Where a bank was empowered to pay the interest on bonds of the Kingdom of Italy upon presentation and surrender of the interest coupons, but not otherwise, the owner of lost interest coupons cannot maintain an action against the bank for interest even though she offers to furnish an indemnity bond.
    The provisions of section 333 of the Civil Practice Act permitting recovery in eases of lost negotiable instruments, do not apply to such a situation.
    Appeal by defendant from a judgment of the Municipal Court, borough of Manhattan, ninth district, in favor of the plaintiff, after trial by the court.
    
      S. A. Cotilla, for appellant.
    
      Burlingham, Feeder, Hasten & Fearey (J. C. Erb, of counsel), for respondent.
   Mullan, J.

The plaintiff owned coupons entitling her to interest on bonds of the Kingdom of Italy. She lost them. The coupons were payable at the business place of the defendant bank, in the city of New York. The defendant had in its possession moneys of the Kingdom of Italy, deposited with the defendant for the purpose of paying the interest represented by these coupons. It is, however, expressly and formally conceded that the defendant was empowered to pay these coupons * * * on their presentation, and surrender to it (defendant), but not otherwise. Defendant is without authority from the Kingdom of Italy to part with said funds for or on account of such interest coupons, except on their presentation and surrender.”

The plaintiff made adequate proof of the loss of the coupons, and offered to furnish a suitable indemnity bond.

We deem it unnecessary to consider whether, if it were not for the limitation of authority in the bank in respect of presentation and surrender of the coupons, the plaintiff would have an action against the defendant. That limitation definitely confined the defendant’s power, and the defendant would have breached its agency agreement had it paid to the plaintiff the interest called for by her lost coupons. The learned trial justice was of the opinion that the provisions of section 333 of the Civil Practice Act permitting recovery in cases of lost negotiable instruments, were applicable to the situation. I think that in so holding he fell into error. Whether or not it would be applicable in a suit against the Kingdom of Italy, it seems to me to be plain that the statute referred to cannot be availed of to change the relationship between plaintiff and defendant, and create a right in plaintiff, growing out of that relationship, greater than that fixed by the very agency agreement that alone gives plaintiff any right of action, if there be such, against defendant.'

Judgment reversed, with thirty dollars costs, and complaint dismissed upon the merits, with costs.

Bijur, J., concurs; Guy, J., dissents.

Judgment accordingly.  