
    Bank of the Metropolis, Appellant, v. Jacob L. Lissner, Respondent. No. 2.
    
      A verdict on conflicting proofs, controlling.
    
    In an action brought to recover upon two promissory notes discounted by the plaintiff, the only question presented was whether the notes constituted a liability of the defendant or of his wife. Jennie L. Lissner, the wife of the defendant, Jacob L. Lissner, was engaged in business, and in 1884 she opened an account with the plaintiff, and gave to her husband a power of attorney, which was delivered to the plaintiff. Subsequently and up to 1891 the defendant, in pursuance of such power of attorney, signed notes and checks “ J. L. Lissner.” The president of the plaintiff testified that in 1891 the defendant notified the plaintiff “ that-the account was Ms in the future; * "x" * that his would he the signature alone,” and that in reliance upon that statement the discounts were made. There was proof that the plaintiff did not, in 1891, change the account of Jennie L.'Lissner upon its books; she then gave no directions for such" a transfer, and no new signature was obtained or left with the bank; both the ledger account and the pass books remained as they had been before 1891. Some evidence was given that the notes in question belonged to. Jennie . L. Lissner, and were received by her in the course of the business which she conducted.
    
      Held, that it was a question of fact whether the signature “ J-. L. Lissner” indicated the defendant or his wife, and that upon this question the verdict of the jury-was controlling.
    Appeal by the plaintiff, the Bank of the Metropolis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of April, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order bearing date the 29th day of March, 1895, and entered in said clerk’s office, •denying the plaintiff’s motion for a new trial made upon the minutes.
    
      George JPutmam Smith and John Delahumty, for the appellant.
    
      Da/oid J&ventritt, for the respondent.
   O’Brien, J.:

The appellant insists that the verdict was contrary to the weight •of evidence, and as this is the only question presented for our consideration, it requires for its determination a brief statement of the issue and the facts appearing upon the trial.

The plaintiff sought to charge the defendant with liability upon "two notes claimed to have been discounted by it for the defendant, which were made to the order of “ J. L. Lissner” and indorsed in that form. The defendant denied that he had indorsed the notes, .and averred that he wrote “ J. L. Lissner ” as the attorney in fact' for Jennie L. Lissner, who was in reality the indorser of said notes. The' latter, the wife of the defendant, was engaged in business, and in 1884 opened an account with the plaintiff, giving to her husband a power of attorney which was lodged with the bank; and pursuant thereto he thereafter signed checks and ■ notes, not with the full signature of Jennie L. Lissner embodied in the power of attorney, but in the abbreviated form of J. L. Lissner. He so continued to sign checks and notes down to 1891, when, according to the testimony of the president of the plaintiff, who at the time mentioned was the cashier, defendant notified the bank that the account was his in the future * * * that his would be the signature alone, and on the strength of that these discounts were made * * * for Jacob L. Lissner.” The maker of the notes testified that he bought goods from the defendant and that he never knew that Mrs. Lissner claimed to own • the business, and two or three other witnesses testified to the same effect. This was substantially all the evidence adduced in support of the plaintiff’s version upon the question • of the identity of the person for whom the discounts were made. In addition, it was shown that a change was made in the design .or vignette upon the checks from that formerly used by- Jennie L. Lissner, but with this exception it is conceded that from 1884 the account remained the same upon the ledger; that the checks and notes were signed J. L. Lissner ” as formerly, and that no change was made in the pass books, nor was there any formal transfer at any time from Jennie L. Lissner to. Jacob L. Lissner.

While the omission to change the account on the ledger is attributed to the oversight of a bookkeeper, all the other facts in connection with the history of this account support the defendant’s version. Thus, as stated, it was conceded that the account of Jennie L. Lissner remained unchanged on the books after 1891; that at the latter date there was no check drawn or direction given by Jennie L. Lissner for the transfer of the account to Jacob L. Lissner; no new signature was obtained or left with the bank when the account was changed, as claimed by the plaintiff. And while it was stated that the discount book would show that they were discounted for Jacob L. Lissner, we have the ledger account and the pass books in which the deposits were entered remaining the same after as they were prior to 1891. It was .also conceded upon the trial that no such change had taken place, and that the discounts of the original notes, of which the notes in suit were renewals, were placed to the credit of the account of Jennie L. Lissner, as was the discount of the notes in suit. In addition, there is testimony that the notes belonged to Jennie L. Lissner, and were received by her in the course of a business com ducted by her, and that there was but one account, and that the account of Jennie L. Lissner, at any time with the bank.

.With such conflict in the testimony recognized by the appellant — because no motion was made at the close of the evidence for the direction -of a ■ verdict in it's favor ■— there was thus concededly a question of fact to be determined by the jury; and it would be going further than we think there is any warrant or authority for, to hold that we could, upon the ground that this verdict was contrary to the weight of evidence, set it aside. Undoubtedly, the manner in which this account was conducted by the defendant in juggling with the names in such a way that to outsiders it would appear that the signature “ J. L. Lissner ” was of the defendant’s own name, when, in point of fact, according to his own version, he was' simply acting under a power of attorney for his wife, is to be regarded with suspicion. But as between this defendant and the plaintiff, the latter having knowledge and permitting it to be done, it was with respect to these particular discounts a clean-cut question of fact, which was disposed of by the jury.

The judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, -Rumsey and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  