On September 19, 1919, the plaintiff made application to the defendant for a cable transfer of moneys in form as follows:
“ Ikying National Bank, New Yokk “ Application for cable transfer “ Payable to Moszek Lomza Zelik Safian “At Makow Zemia Lomza Ulica Brsozowa No. 288
“Account of
“Amount 7000 P. M. at 4.25.................. $297.50
“ Cost of Message........................... 7.50
“Total................................. $305.00
“ The undersigned hereby certifies that this transaction does not involve any trading with, for or on behalf of any party who is an enemy or ally of an enemy of the United States, or who is acting in the transaction on behalf of or for the benefit of an enemy or ally of an enemy of the United States, and is in no way in violation of the act of Congress known as the ‘ Trading with the Enemy Act.’*
“Purchaser......Sam Safian.
“ Address........31 Jefferson St., New York City
“Date..........19 Sept., 1919.
“No liability is to attach to the Bank for any loss or damage in consequence of delay or error in transmitting the message by the telegraph Company or for any other cause beyond its con tro:.
“ Cabled Sep. 19, 1919 “ Cash by L. received.
“ Foreign Sep. 20, 1919 Department L. D.”
He paid to the defendant the sum of $305, and received from the defendant a paper in the following form:
“ Irving National Bank New York “ No. 81304 Da.te. Sept. 19/19 Payable
“ Cable Transfer
“ Through Commerzbank in Warsaw Warsaw
“ In favor of Moszek Zelik Safian
“Address Makow Zemia Lomza Ulica Brsozowa
“Account of “ No‘ 288 “ Order of
“Amount Marks 7000.—
“Cable.................
at 4.25............. $297.50
................... 7.50
Total.
$305.
*462“ Sold to Mr. Sam Safian 31 Jefferson Street, City.
“ In making Cable Transfers it is fully understood and agreed that no liability shall attach to us nor our correspondents for any loss or damage in consequence of any delay or mistake in transmitting the message, or for any cause beyond our control.
“ This exchange is sold with the understanding that this transaction does not involve any trading with, for or on behalf of any party who is an enemy or ally of an enemy of the United States, or who is acting in the transaction on behalf of or for the benefit of an enemy or ally of an enemy of the United States, and is in no way in violation of the act of Congress known as the ‘ Trading with the Enemy Act,’* and that the buyers will, upon demand, certify to that effect.
“ Exchange will be purchased promptly to cover this remittance, and payment therefor is only accepted upon the following condition: \ If payment for any reason cannot be effected, the Irving National S Bank will not be hable for any sum in excess of the current market !yalue in New York at the time the refund is made.
“ Cash by L. received.”
The defendant, thereupon, cabled to its correspondent in Warsaw, directing it to make payment to Moszek Zelik Safian, at Makow, which is an interior town in Poland. To make that payment it was necessary to transmit by mail a postal order to the address at Makow, as there was apparently no bank through which payment could be directed. The payee was notified by this plaintiff and called upon the postal authorities for the postal order. Through some mistake, however, the postal order was made out in form to Moszek Zelik, and the postal authorities refused to deliver the postal order to Moszek Zelik Safian, to whom the moneys were to be paid. Upon learning of this fact this plaintiff demanded back his money and upon the refusal of the defendant to pay back the same brought suit in the Municipal Court. According to the practice in that court the substance of the plaintiff’s cause of action is stated to be “ Breach of contract, moneys had and received, negligence.” Judgment was entered in favor of the plaintiff and upon appeal to the Appellate Term this judgment was affirmed with one justice dissenting. (See 115 Misc. Rep. 387; affd., 116 id. 647.)
In Equitable Trust Co. v. Keene (232 N. Y. 290) an agreement for a cable transfer is declared to be simply an agreement on the part of the promisor to make available at the point of delivery to the payee named the moneys therein specified. The special sig*463nifican.ee given to a cable transfer under the case of Strohmeyer & Arpe Co. v. Guaranty Trust Co. (172 App. Div. 16) seems to have been overruled. The contract is declared to be executory and to be interpreted under the same rules as are other contracts for the transmission of moneys. The opinion further says (p. 294): “ The principles involved are not different than those which would be applicable to a contract dealing with ordinary articles of personal property.” The use of the cable, or the wireless, is simply made for expedition and not as altering the legal rights of the purchaser upon the breach of the promisor’s agreement. This position seems to be strongly sustained by the Supreme Judicial Court of Massachusetts in the case of Beecher v. Cosmopolitan Trust Co. (-- Mass.-; 131 N. E. Rep. 338) and the opinion in Equitable Trust Co. v. Keene (supra) quotes with approval the discussion by Dean Stone of the Columbia Law School upon the question of transmission of funds, reported in Columbia Law Review (Vol. 21, p. 507). In the Beecher case, cited, it was held that a trust company, which sold to a customer a foreign order, the payment of which was stopped by the Bank Commissioner when he took charge of the trust company, is liable to the purchaser of the order for the amount thereof at the rate of exchange prevailing on the day the trust company breached its contract by stopping payment on the order.
The plaintiff was not authorized to rescind the contract, because the defendant had partly performed his contract and purchased the foreign moneys, and would suffer a loss in the depreciation of the marks which were contracted to be delivered if the contract were rescinded. (Scheibe v. Zaro, 199 App. Div. 807.) The evidence is to the effect that the time necessarily occupied in transferring this fund from Warsaw to Makow was about thirty days. No evidence was offered as to the value of these marks thirty days after the cable message was received at Warsaw. Assuming, as we may well assume, upon the evidence-that the negligence was the negligence of the Warsaw bank, the agent of the defendant, the plaintiff is entitled to the value of the performance of the contract as his damages and that value is to be determined by the value of these marks thirty days after the receipt of the cable message by the Warsaw bank.
Without evidence, therefore, of the value of exchange at that time, the trial court had no basis upon which to order judgment, and the determination and judgment should, therefore, be reversed and a new trial granted, with-costs to the appellant in all courts to abide the event.
Determination affirmed, with costs.
See 40 U. S. Stat. at Large, 411, chap. 106, as amd.— [Rep.
See 40 U. S. Stat. at Large, 411, chap. 106, as amd.-— [Rep.