I dissent. Plaintiff and defendant entered into a written agreement for the purchase by the plaintiff of a cable transfer of money *651to be paid in Poland. It appears by fair inference, and without contradiction, that when the defendant bank received the money of the plaintiff it purchased sufficient Polish exchange to include said amount. If the bank had not purchased the Polish exchange, hut simply had directed its Warsaw correspondent to pay tiie money and no conversion of the American money into Polish money had taken place, the bank would be liable as a debtor to the plaintiff in an amount equal to the amount which the plaintiff had paid. Atlantic Communication Co. v. Zimmerman, 182 App. Div. 862.
After the money of the plaintiff was received by the defendant bank 'and before the purchase of the Polish exchange, the only obligation then resting on the defendant bank was a contractual one. Legniti v. Mech. & Metals National Bank, 230 N. Y. 415; Strohmeyer v. Guaranty Trust Co., 172 App. Div. 16; Matter of Barned’s Banking Co., 39 L. J. Ch. 635. After the application of the moneys by the purchase of the Polish exchange there is authority for holding that the foreign money had been applied for the specific purpose and constituted a quasi trust fund. Farley v. Turner, 26 L. J. Ch. 710; Matter of Barned’s Banking Co., supra. In either event the parties were acting in accordance with the terms of their written contract and one of these terms was “ In making cable transfers it is fully understood and agreed that no liability shall attach to us or our correspondent for any loss or damage in consequence of any delay or mistake in transmitting the message or for any cause beyond our control. ’ ’
When the plaintiff demanded its money and the defendant did not seek to show that it could still make delivery, the defendant became liable to the plaintiff as of the time of the demand, but only for the current market value in New York. To hold otherwise would *652seem to be contravening the very provisions of the contract which the parties themselves have made, for if the current value of the Polish money is- less than when the said money was purchased by the bank, pursuant to carrying out the contract between the parties, the bank will 'suffer loss and damage in consequence of a mistake in transmitting the cable by the cable company. The records show that in the transmission the name of the payee was given as Moszek Zelik instead of Moszek Zelik Safian. It thus appears that there has happened exactly what the parties by their written agreement provided for and which must have been the basis upon which the rate was fixed by the bank. The agreement further provided: ‘ ‘ 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 Bank will not be liable for any sum in excess of the current market value in New York at the -time the refund is made.”
It is true that the defendant bank did not -show that the payment “ cannot be effected ” but this did not prevent the paragraph in the agreement first above quoted from being -applicable. To hold that this last clause nullifies the clause of the agreement first above set forth is not in accord with the mile of construction that all parts of an instrument -should be so construed as to give effect to each part thereof.
Judgment appealed from should be reversed and a new trial ordered in accordance with the above.
Judgment affirmed,