The statute (L. 1907, ch. 185) was passed to protect people like the plaintiff from the dishonesty of men like Gagliano, for whom the appellant became surety for pay. The plaintiff proved the delivery of $1,000 to Gagliano to be transmitted to the postal treasury of the Kingdom of Italy, his promise that the plaintiff should receive a bank book within four weeks, his failure to redeem that promise, an unsuccessful attempt to find him at his place of business at and after the expiration of the four weeks, and that he had absconded. The reasonable inference from those facts is that the money was not transmitted.
Gagliano undertook to procure a bank book which was to be the plaintiff's evidence that the money had been transmitted and that he had it on deposit in the bank at Rome. That evidence was important to the plaintiff, but Gagliano could gain nothing by withholding it if the money was actually transmitted. The latter's absconding and failure to deliver the book as agreed can be reasonably accounted for only on the theory that he stole the money, which, in the ordinary course of business, could have *Page 526 been transmitted to Rome and the evidence of its receipt returned in less than four weeks. We may guess that the bank neglected to acknowledge the receipt of the money or that its acknowledgment was lost in the mails, but a guess that something may have happened out of the usual course of business does not suffice to rebut the inference arising from the facts proved
Judging Gagliano's conduct according to the natural course of human action, it is highly probable that he absconded with the plaintiff's money. If so, the evidence was sufficient to put the appellant to its proof, as it certainly would have been sufficient if its principal was himself the defendant. "It is seldom possible to demonstrate, or establish to an absolute certainty, the existence or the non-existence of the facts at issue between the litigants, and the law does not require such a high degree of proof, but such evidence as renders the existence of the facts in issue, and upon which the right to recover depends, probable, is sufficient to require the party who denies their existence to sustain his denial by evidence." (Gallagher v. Crooks, 132 N.Y. 338, 344.) If the poor and ignorant people who send small sums of money as the plaintiff sent his were required, in every case of a default of the person receiving it for transmission, to go to the expense of taking depositions in a foreign country, the statute would be of little benefit to them. Of course, that consideration does not obviate the necessity of proof, but it should be taken into account before establishing a rule of evidence which requires us to close our eyes to a natural and rational explanation of the facts proved, amounting almost to a moral certainty.
In other respects, I concur in the opinion of my brother CHASE and vote to affirm the judgment.
HISCOCK, COLLIN and CUDDEBACK, JJ., concur with CHASE, J.; WILLARD BARTLETT, Ch. J., and CARDOZO, J., concur with MILLER, J.
Judgment reversed, etc. *Page 527