(dissenting). We are now reviewing the result of a second trial of an action to recover the sum of $253 for the failure of the defendants, bankers in New York, to transmit that amount to the plaintiff in Mainz, Germany, in accordance with the direction of one Paula Jacoby Pick who intrusted this duty to the defendants by a letter dated March 28, 1916. The writer inclosed two checks aggregating the sum mentioned and requested them to “ please send in the usual way to Jacoby & Lang, Mainz. Will you please take care that the letter will go forward on SS United States? ” Jacoby & Lang was the trade name of the plaintiff. Admittedly she never received the money and the defendants never transmitted it to her directly, but they claim to have discharged their trust by following the previous course of dealings with the sender, whereby a number of former remittances to the very same plaintiff were forwarded by crediting the amounts for the account of the latter with the Disconto Gesellschaft of Mainz, a banking institution of Germany, Where, as already pointed out, the plaintiff is located. There can be no serious dispute but that the defendants did actually credit that bank with this sum of money on their books, but, unfortunately, the notification of this fact so as to make the credit available did not reach the German bank until approximately three years later, although forwarded promptly. By that time, however, the funds were not within the reach of the German banking insti*36tution or of this plaintiff, because the Disconto Gesellschaft credits of these defendants had been turned over by the latter to the Federal Alien Property Custodian.
Upon the first trial of this cause the complaint Was dismissed, and on appeal we reversed this disposition and held that the plaintiff had established a prima facie case. In the light of this it would seem as though we should properly enter upon a consideration of the sufficiency of the separate defenses, which are substantially (1) that the defendants discharged their duty by crediting the account of the German bank with the money; and (2) that they paid the money over to the Alien Property Custodian, against whom it is argued the claim should be made.
I cannot agree with the determination implied by the affirmance of the court below that defendants as a matter of law discharged their duty in the premises. Even if we construe the letter of instruction to forward the money to the plaintiff as an order to credit the funds, in accordance with the course of previous dealings between the parties, to the Disconto Gesellschaft instead of to Jacoby & Lang directly, the evidence clearly shows this to be but a mere bookkeeping entry of the defendants. As the German bank had no notice of such a credit, it was not in a position to make these funds available to the plaintiff; especially is this so when it is recalled that when it received the instruction its American funds were in the hands of the Alien Property Custodian. In any event, until the notice was received by that bank the defendants’ duty was not discharged. (Landesberg v. Bankers Trust Co., 121 Misc. 117.) As' this very court said in that case, the defendants agreed to do a specific thing and they utterly and completely failed..
Assuming, however, that payment to the Alien Property Custodian would exonerate the defendants in these circumstances, they did not sustain the burden of proving that they actually made it. Plaintiff’s attorney made an earnest effort, before the inception of the litigation, to trace the connection between the moneys claimed and those turned over to the Federal custodian, but bis inquiries were met with the reply that the defendants were “ unable to state that the item of $253 credited by us on March 29, 1916, to the Direction der Disconto Gesellschaft, Mainz, was included in the $650.53 turned over to the Alien Property Custodian by us.” This, it Would appear, clearly indicates that the affirmative defense in this respect has failed.
But the right of recovery by the plaintiff has been challenged by the court below on the ground that while she is a third party beneficiary she does not come fully within the rule of Lawrence v. Fox (20 N. Y. 268). To this I cannot subscribe, as the tendency of *37the late cases undoubtedly is to enlarge, not to limit, the scope of that case. (Seaver v. Ransom, 224 N. Y. 233.) The trial judge, in his opinion, held that the effect of that case, notwithstanding its liberal tendency, is to restrict the right of recovery to third party beneficiaries to whom the promisee owes at least a moral duty. Admitting this limitation, nevertheless the record of an extended course of dealing between the parties over a period of years prior to this transaction, as revealed by the evidence offered by the very defendants, could not but lead to the inference that the relation between these parties was wholly contractual and that the plaintiff fully brought herself within even the narrow limits of the rule in Lawrence v. Fox.
I, therefore, vote to reverse the judgment.