(dissenting). Appellant unavailingly moved to strike out the third cause of action, and, upon the denial of its motion, took this appeal.
Plaintiff’s first cause of action is based upon a bond alleged to have been made and delivered by appellant to plaintiff’s assignor, guaranteeing the assignor, the lessor of a certain building in Manhattan borough, as obligee against any loss or damage in connection with the completion of alterations and replacements by the lessee, and alleges further facts entitling plaintiff to recover.
The third cause of action is totally different. The pleader in that cause of action does not assert that appellant delivered any bond to the plaintiff’s assignor, but that appellant’s liability is in negligence, the allegation with respect thereto being as follows:
“ Twenty-fourth. That if said bond was a forgery, as now claimed by the defendant National Surety Company, the opportunity for such forgery to be committed was due and attributable to the carelessness and negligence of said defendant National Surety Company, in permitting such fully executed forms and documents by which its bonds and undertakings are customarily authenticated to lie about and be exposed in its offices thereby rendering such forms and documents available to strangers and to those having no authority to make use of the same and thereby permitting, also, said strangers and said other persons to possess themselves of said forms and documents and by affixing the same to instruments bearing the title or designation of said defendant National Surety Company, to give to said instruments the semblance and appearance *304of being properly executed and duly authenticated instruments of said defendant.”
I have concluded that there is no direct causal relationship between the careless exposure of the forms and documents which might authenticate the guaranty of a surety company and the damage herein alleged, inasmuch as the forging of its signature to the bond and its delivery thereafter were necessary intervening elements. Appellant may not be held hable because it failed to foresee that someone might utilize these papers in the commission of that crime. It is not claimed in this cause of action that appellant knew or authorized the execution of this bond, or had any reason to suspect the existence of a forgery in time to avert loss. The proximate cause of plaintiff’s damage was the act of the forger, for whose conduct appellant, under the facts pleaded, cannot be held hable. There is not that clear and unbroken sequence which must exist before the acts charged against appellant can be held to be the proximate cause of the loss. If such acts be neghgent, as pleaded in the complaint and as must be assumed upon this motion, they may fall within what has been euphemistically termed “ negligence in the air.” (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 341.) The reasoning of the court in Mairs v. Baltimore & Ohio R. R. Co. (175 N. Y. 409, 414) further supports this view.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Martin, J., concurs.
Order affirmed, with ten dollars costs and disbursements, with leave to the defendant, appellant, to answer within twenty days from service of order upon payment of said costs.