The order should be affirmed, with costs, and the first question certified should be answered in the affirmative, and the other two in the negative.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur.

Order affirmed.

DAMIANO MUSCo, Respondent, v. UNITED SURETY COMPANY, Appellant.

Constitutional law validity of chapter 185, Laws of 1907, regulating the taking of deposits for transmission to foreign countries.

Chapter 185 of the Laws of 1907, entitled “An act to regulate the taking of deposits by certain persons, firms and corporations," is constitutional in subjecting to regulation the particular class of persons designated by the statute. The regulation of the business of receiving deposits of money is plainly within the power possessed by the state to regulate the conduct of various pursuits, when necessary for the protection of the public. The statute does not improperly discriminate against the class of persons engaged in selling steamship tickets, who in conjunction with such business carry on the business of receiving deposits of money for future transmission to foreign countries, and in favor of others. An individual may waive even a constitutional provision for his benefit, when no question of public policy or public morals is involved, and where a person, engaged in the business of selling steamship tickets to foreign countries, and desiring to carry on, in conjunction therewith, the business of receiving deposits of money for the purpose of transmitting it to foreign countries, gave, pursuant to chapter 185 of the Laws of 1907, a bond to the People of the state, with a surety, for the faithful holding and transmission of all moneys delivered to him for that purpose, he thereby waived the right to question the constitutionality of the statute, and his surety is estopped from raising that question in an action, thereafter brought against it, upon the principal's defalcation, by those who made deposits on the faith of the undertaking. The fact that the statute provides that a person, who carries on the business of receiving deposits of money for transmission to foreign countries, without giving such bond shall be guilty of a misdemeanor, does not constitute a duress which relieves the principal and surety who executed the bond in question from the imputation of having voluntarily waived the invalidity, if any, of the statute.

The statute is not unconstitutional as infringing on the exclusive right of Congress to regulate foreign and interstate commerce. Although in a limited degree affecting interstate commerce, it is not for that reason a needless intrusion upon the Federal jurisdiction or strictly a regulation of interstate commerce, but is to be considered as an ordinary police regulation and, therefore, not invalid.

Musco v. United Surety Co., 132 App. Div. 300, affirmed.

(Argued October 5, 1909; decided November 23, 1909.)

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 1909, which reversed a judgment of Special Term overruling a demurrer to the answer and dismissing the complaint and sustained said demurrer.

The following question was certified: "Does the plaintiff's complaint set forth facts sufficient to constitute a cause of action?"

The action was brought to recover on a bond executed by one Ferrara as principal and the appellant as surety pursuant to the provisions of chapter 185 of the Laws of 1907. The complaint in substance among other things alleged the execution of said bond by said principal and surety, whereby they bound themselves in the sum of $15,000, on the condition that if the said principal should "faithfully and diligently hold and transmit any, and all moneys, or the equivalent thereof which shall be delivered to them for transmission to a foreign country or countries as provided by *** chapter 185 of the Laws of 1907, and duly account for and promptly pay over all moneys, or the equivalent thereof, received by him as aforesaid, then this obligation to be void" that between the date of execution of said undertaking and the commencement of this action various people delivered to said Ferrara various sums of money to be transmitted abroad and which he failed to transmit or account for, and the said people thereafter assigned their respective causes of action to the plaintiff. A copy of the undertaking attached to the complaint recites that said principal "is engaged in or is about to engage in the selling of steamship

or railroad tickets for transportation to or from foreign countries and in conjunction with said business, carries on or is about to carry on the business of receiving deposits of money for the purpose of transmitting the same, or the equiv alent thereof, to foreign countries and is required to make, execute and deliver a bond pursuant to chapter 185 of the Laws of 1907," and it has been assumed in the argument of this case that said Ferrara was engaged in business as aforesaid and did come under the provisions of said act.

The appellant by its answer and the respondent by his demurrer thereto have presented the question whether the law requiring the execution of said bond is constitutional and such question is the one really involved in the general question submitted to us whether the complaint sets forth a cause of action.

Edwin Blumenstiel for appellant. The statute under which this plaintiff is suing and under which this bond was given, to wit, chapter 185 of the Laws of 1907, is clearly unconstitutional. (Matter of Brunswick v. Harvey, 114 Ga. 733; People ex rel. Tyroler v. Warden, 157 N. Y. 116; People v. Marcus, 110 App. Div. 255; People v. Williams, 189 N. Y. 131; Grossman v. Caminez, 79 App. Div. 15; Connolly v. U. S. P. Co., 184 U. S. 540; B. U. Co. v. C. C. Co., 111 U. S. 746; Cotting v. Godard, 183 U. S. 79.) A statute which is unconstitutional is void; bonds given thereunder are likewise null and void, and fall, and the surety sued in an action on said bonds can raise such defense. (Vose v. Cockroft, 44 N. Y. 415; Brookman v. Hamill, 46 N. Y. 636; Coburn v. Townsend, 37 Pac. Rep. 202; Crum v. Wil son, 61 Miss. 233; P. Nat. Bank v. Mixter, 124 U. S. 721; Byres v. State, 20 Ind. 47; Post v. Doremus, 60 N. Y. 371; Ames v. Maclay, 14 Iowa, 281; Thomas v. Burns, 23 Miss. 552; U. S. v. Tingley, 5 Pet. 115.) Chapter 185 of the Laws of 1907 is unconstitutional in that it is in violation of the Federal Constitution, which provides that the United States Congress shall regulate foreign commerce. (Crutcher v.

Opinion of the Court, per HisCOCK, J.

[Vol. 196.

Kentucky, 141 U. S. 47; County of Mobile v. Kimball, 102 U. S. 691; People ex rel. P. R. R. Co. v. Wemple, 138 N. Y. 12; Welcome v. State of Missouri, 91 U. S. 275; Henderson v. Wickham, 92 U. S. 257.)

Nelson L. Keach and Achille J. Oishei for respondent. The defendant, United Surety Company, is in no position to raise or test the constitutionality of the statute in question. (Carlisle v. Saginaw, 84 Mich. 134; R. R. V. Nat. Bank v. Craig, 181 U. S. 548; Wiley v. Snikler, 179 U. S. 58; U. S. v. Moriarity, 106 Fed. Rep. 886; People v. B., F. & C. I. R. Co., 89 N. Y. 75; 8 Cyc. 787; People ex rel. Henry v. Folke, 89 App. Div. 171; People v. Turner, 49 Hun, 486; Kansas City v. U. P. R. R. Co., 59 Kan. 427.) The statute in question is clearly constitutional. (State of Indiana v. Richcreek, 5 L. R. A. 874; State v. Wickenhoefer, 64 Atl. Rep. 273; Matter of H. D. Co., 147 Fed. Rep. 538; Williams v. Fears, 179 U. S. 270; Wright v. Hart, 182 N. Y. 341; Wynehamer v. People, 13 N. Y. 391; Phelps v. Racey, 60 N. Y. 14; Bertholf v. O'Reilly, 74 N. Y. 521; People ex rel. Farrington v. Mensching, 187 N. Y. 21; People ex rel. Armstrong v. Warden, 183 N. Y. 225.) The statute in question relates in no way to foreign commerce. (Magner v. Grima, 8 How. [U. S.] 490; Williams v. Fears, 179 U. S. 270; State ex rel. Beek v. Wagener, 46 L. R. A. 442; Hennington v. Georgia, 163 U. S. 299.) A surety cannot avail himself of a defense personal to his principal. (Keokuk v. Hall, 106 Iowa, 540; Hesser v. Steiner, 5 W. & S. [Pa.] 476; Goodell v. Bates, 14 R. I. 65; Kimball v. Newell, 3 Hill, 116.)

HISCOCK, J. Chapter 185 of the Laws of 1907 is entitled, "An act to regulate the taking of deposits by certain persons, firms and corporations." Amongst other things it provides (section 1): "All corporations, firms and persons now or hereafter engaged in the selling of steamship or railroad tickets for transportation to or from foreign countries, who in conjunction with said business carry on the business of

N. Y. Rep.]

Opinion of the Court, per HISCOCK, J.

receiving deposits of money for the purpose of transmitting the same, or the equivalent thereof, to foreign countries, shall, before entering into said business, or before continuing said business, except as hereinafter provided, make, execute and deliver a bond to the people of the state of New York in the sum of fifteen thousand dollars, conditioned for the faithful holding and transmission of any money, or the equivalent thereof, which shall be delivered to it or them for transmission to a foreign country;" also (section 6), "This act shall not apply to drafts, money orders and travelers' checks issued by trans-Atlantic steamship companies or their duly authorized agents or to national banks, state banks or trust companies;" also, that a suit to recover on such a bond may be brought by or upon the relation of any party aggrieved; also, that any corporation, firm or person continuing in the business aforesaid, "contrary to the provisions of this act," shall be guilty of a misdemeanor.

The appellant as surety having executed an undertaking in accordance with the provisions of said act with and for a person engaged in receiving deposits as aforesaid, in this action brought in behalf of persons who made deposits with the principal after such undertaking was executed, which have not been accounted for, defends on the ground that said act is unconstitutional. It insists that the statute is unconstitu tional, first, because it is an unjustifiable interference with the rights of citizens to carry on a legitimate business; second, because it unjustly discriminates between members of the same class, since it exempts steamship companies or their authorized agents in certain respects from the operation of the said statute; and, third, because it is in violation of the provisions of the Federal Constitution that Congress shall regulate foreign commerce.

We are of the opinion that these contentions cannot prevail; that, in the first place, the appellant is debarred from making them; and, secondly, that the objections, even if available to it, could not be sustained.

The appellant and its principal have waived any question