I am constrained to dissent from the conclusion reached by the majority of the court. The established facts in this case clearly indicate that there were no purchases of credits, bub rather directions in each instance to the M. Berardini State Bank to transmit certain specific sums of money to the Postal Savings Bank of the Kingdom of Italy. (Legniti v. Mechanics & Metals National Bank, 230 N. Y. 415; Cutler v. American Exchange Nat. Bank, 113 id. 593; People v. City Bank of Rochester, 96 id. 32.)
In the Legniti case Judge Crane wrote: “There is a marked distinction between these transactions which I have just described and a direction to a bank or other person to transmit a certain specific sum of money to a person abroad. In such cases the bank or transmitter is the agent of the person paying the money, and until the money is sent holds it as agent or trustee for the owner. Such were the cases of Musco v. United Surety Company (132 App. Div. 300) and People ex rel. Zotti v. Flynn (135 App. Div. 276). In these latter transactions the intention of the payer is that the money he gives to his agent shall be sent abroad. It is the amount which he gives that is to be transmitted. How it is sent may be immaterial to him. If there be time, currency might be purchased and sent. If not, it may be transmitted in any form recognized in financial circles. It is not at all necessary that the sender or agent have credit in the place to which the money is to be sent.”
Here, each of the plaintiffs purchased specific sums of lire which were to be sent to the Postal Savings Bank of the Kingdom of Italy. In those instances where plaintiffs had savings accounts in the bank at the time of the respective orders, the M. Berardini State Bank converted their dollars into lire and made a service charge for so doing. It will be noted that the receipts delivered to the plaintiffs even went so far as to read: “ The foregoing valuta has been insured against all risk including- all those arising from Act of God.” The bank, as agent, then and there accepted from these plaintiffs the lire purchased and was charged not only with the duty or trust of transmitting them to the Postal Savings Bank in Italy, but also of *575keeping the amounts so received separate from its general funds. These plaintiffs did not intend to permit the bank to use the money for its own purposes, or to establish the ordinary relationship, of debtor and creditor, but rather entered into agreements with the bank that the specific number of fire in some form or other be transmitted to the Postal Savings Bank. Thus, these plaintiffs were only general creditors of the bank, while their money was in the savings accounts; but when the bank changed their dollars into lire, as was concededly done in each instance, and accepted their respective orders to transmit, it became an agent or trustee charged with a specific duty toward specific funds. With respect to those plaintiffs who deposited dollars at the time of the orders, the same general rule applies. The bank also converted their money into fire and accepted their respective orders as their agent. Their moneys never became part of the general funds of the bank.
Notations of the purchases of fire by the respective plaintiffs were made in the books of the bank. The receipts were for lire and not for dollars. The appearance and wording of the receipts showed that the bank was representing itself to be an agent of the Postal Savings Bank of Italy. As translated, they read substantially as follows:
“ Service of the Postal Savings IBank of the Kingdom of Italy. //-. M. Berardini State Bank, 34 Mulberry Street, New York. — fire — deposited in favor of--. M. Berardini State Bank.”
This case does not involve ordinary commercial transactions between business men and banking institutions. It deals with the transmission of money into savings accounts in a foreign country, with a promise of a return of the savings bank books in due time, and with proper notations of deposits. How the bank intended to carry out its part of the agreements is not material. The trust funds could “ be transmitted in any form recognized in financial circles.” (Legniti v. Mechanics & Metals National Bank, supra.) The method pursued by the bank' in sending instructions by mail to the Banca M. Berardini in Naples, an institution with which it had no connection, was not a part of any of the agreements made by these plaintiffs.
The findings of the trial court and the conclusions of law based thereon have ample support in the record.
The judgment should be affirmed, with costs.
Finch, P. J., concurs.
Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.