
    FANNY SCHOENWALD, Plaintiff and Respondent, v. THE METROPOLITAN SAVINGS BANK, Defendant and Appellant.
    The plaintiff deposited with defendants one hundred dollars. She was given a pass-book by defendants, in which was witten the amount of the deposit and date of its reception, in account form, purporting to' charge defendants as a debtor to plaintiff in that amount. Upon a page of this pass-book, following the entry, were printed rules¡ numbering from one to eighteen inclusive, and headed by the following words printed in capitals and larger type, “ Rules from the Charter and By-Laws.” The eight, eleventh, and seventeenth of those rules read as follows:
    “8. All deposits shall be entered in the book of the corporation, and a pass-book shall be given to the depositor, in which the sum deposited by him shall be entered, and which shall be his voucher, and the evidence of his property in the said institution.”
    “ 11. On making the first deposit, the depositor shall be required to subscribe his or her assent to be governed by the regulations and by-laws of the institution.
    
      “ 17. The secretary will use his best efforts to prevent frauds ; but all payments to persons producing the deposit-book shall be deemed good and valid payments to depositors respectively.”
    The plaintiff wrote her name in a book kept by defendants for that purpose, and wrote the same in German text or script, and took away the pass-book with her.
    On the 27th day of September thereafter a man calling himself John Brown, presented to the teller of the defendants this bank-book of defendants, and also a written order purporting to have been made by plaintiff, in this form:
    “27352 New York
    “ Let the bearer have $60 (sixty dolls),
    
      “ Sept. 27, 1869. o Eahnt Schoenwald.”
    This man indorsed the order, received the amount named from defendants; and a return of the pass-book after the amount had been entered therein. -
    The signature of the order was very much like the genuine signature of defendant; so much so, that plaintiff, when the same was presented to her and asked if it was her signature, said: “I do not know if it is or not; that looks like my writing;” but she afterwards stated that it was not her signature, because she never gave any one a paper like this. Reid, that these facts did not constitute an agreement between the parties by which the defendants were authorized to pay the deposit to any person presenting the bankbook with such an order (unless the signature to the order was that of plaintiff), and that the handing of a pass-book by defendants to the plaintiff as a voucher of the deposit, and containing the rules and by-laws of the bank, without calling her attention specially to the same, did not constitute a mutual contract, and that the only question for the jury in the case was this: Was the signature to the order the genuine signature of the plaintiff? Opinions of Barbotjr, Ch. J., and Freedman, J. See Spencer, J. (dissenting).'
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.
    
      Decided, December 31, 1871.
    The plaintiff brings this action to recover sixty-nine dollars, an alleged balance of a deposit of one hundred dollars, made with the defendants.
    The defendants admit the deposit having been made, but allege that it was made by plaintiff, and accepted by defendants, subject to the conditions expressed in the charter and by-laws of defendants, of which plaintiff had knowledge. That by said charter and by-laws it is provided that payments will be made to depositors personally, or under their written orders, and that the possession of the pass-book of a depositor shall be deemed evidence of the right of the holder thereof, to draw the money deposited. That a person presented to defendants a draft or order, signed by the plaintiff, for sixty dollars, at the same time exhibited to defendants the pass-book of the plaintiff, whereupon defendants paid the said sixty dollars, and entered the amount thereof in said pass-book. The evidence disclosed the following facts, which are uncontested: That on the 31st day of August, 1869, the plaintiff deposited with defendants at their bank one hundred dollars. At the request of the officer of defendants she wrote her name in a book kept for that purpose at the bank, and wrote the same in German text or script. She was given a pass-book by the defendants, which she afterwards took away and in which was entered in words and figures, in plain English writing or script, the amount of the deposit, and the date of its reception. This deposit was entered inside of the book, in account form, and purported to charge the defendants as a debtor to plaintiff to that amount (one, hundred dollars). On a page or pages before the entry of the deposit, was "written the number of the pass-book, twenty-seven thousand three hundred and fifty-two, after which followed the printed words “bankbook,” under which plaintiff’s name was written in in plain English script. Then followed printed matter, denoting the name and place of business and business hours of the defendants, and directions purporting to be addressed to the owner of the pass-book, and also the names of the officers of defendants.
    Upon a page or pages of this pass-book, following the entry of the deposit, were printed certain rules, numbered from one to eighteen, inclusive, and headed by the following words, printed in capitals and larger type, “Rules from the charter and by-laws.” The following are the eighth, eleventh and seventeenth of said rules:
    “8. All deposits shall be entered in the book of the corporation, and a pass-book shall be given to the depositor, in which the sum deposited by him shall be entered, and which shall be his voucher, and the evidence of his property in the said institution.
    “11. On making the first deposit, the depositor shall be required to subscribe his or her assent to be governed by the regulations and by-laws of the institution.
    £ ‘ 17. The secretary will use his best efforts to prevent frauds; but all payments to persons producing the deposit-books shall be deemed good and valid payments to depositors respectively.”
    On the 27th of September, 1869, a man presented the bank-book of the plaintiff, to the paying teller of the defendants, and also an order purporting to have been made by the plaintiff in the following form:
    
      “27,352. “NewYokk.
    “Let the bearer have $60 (sixty dolls.).
    “Sept. 27, 1869. “Fanny Schoenwald.”
    The man who presented this order, after endorsing the same as “John Brown,” received the amount named, and a return of the bank-book, after the amount had been entered in the bank-book.
    The signature to the order was very much like the genuine signature of the plaintiff, so much so, that plaintiff stated under oath, on its being presented to her and she was asked if it was her signature, “I do not know if it is or not; that looks like my writing.” She afterwards stated that it was not her signature because she never gave any one a paper like this.
    After plaintiff received the bank-book, she kept it in her trunk and, as she supposed, locked, until October 19th, 1869, when she took it to the bank and drew thirty-nine dollars, this being the time the facts relating to the order of sixty dollars were discussed between the parties.
    Defendants refused to pay these sixty dollars drawn under the supposed forged order.
    Defendants’ counsel moved to dismiss the complaint, which was denied and exception taken. He then requested the court to charge,
    1. That defendants are entitled to a verdict.
    2. That the fact, if proved, that the plaintiff’s attention was not called to the by-laws of the bank at the time of making her deposit, does not relieve the plaintiff from the effect of said by-laws ; but she was bound by the same, and a payment made in accordance therewith was a valid payment.
    3. That, if the defendants were bound to call to the plaintiff’s attention the by-laws and regulations governing her deposit, the delivery to her of the pass-book wherein were contained these by-laws and regulations was a sufficient notice to her, and she was bound thereby.
    4. That the defendants, under their contract- with the plaintiff, had a right to presume that'the person who presented the plaintiff’s bank-book had a right to receive the money directed to be paid by the order.
    
      5. That, if the payment was made in good faith by the bank to a person presenting the bank-book of the plaintiff, the plaintiff was bound by such payment, even though the order directing the payment was a forgery.
    Which being refused, exception was taken. Exception was also taken to part of the judge’s charge, in which he charged “that if the plaintiff did not sign the order, or subsequently ratify it, the bank would be liable.”
    The jury found a verdict for the amount of the forged check and interest, sixty-five dollars. Defendants’ counsel moved for a new trial, which was denied and exception taken.
    This appeal is from the judgment entered upon the verdict, and from the order of the court denying a new trial.
    
      M. P. Stafford and Horace Graves, for the respondent.
    
      Geo. Putnam Smith, for the appellants.
   Barbour, Ch. J.

The pleadings show that the defendant is a corporation; but whether it has a fixed capital, with stockholders who share in the profits, or. has no capital beyond what is furnished by the money of its depositors, does not appear; nor do I deem that question important. It is sufficient that the bank is a corporation, and, therefore, bound by the same rules of law in regard to its dealings with others, which control the actions of natural persons.

Upon, receiving the deposit, the bank became bound to pay the amount to the plaintiff, whenever requested to do so by a check or order signed by the depositor, unless a special contract was made with her, either in terms or by legal implication from the acts of the parties.

Undoubtedly an agreement between the parties, by which the bank was required to pay the amount of the deposit, or any portion of it, to such person as should present the bank-book, or any other token, would have been valid. But the mere handing over to the depositor of a bank-book, containing the rules and bylaws of the bank, without calling her attention to its contents, did not constitute a mutual contract upon which the minds of the parties, met. That question has several times been passed upon in this court, and is no longer an open one here (See Ramaley v. Leland, 6 Robt. 358 ; S. C., 43 N. Y. 539). The cause, therefore, was properly left to the determination of the jury upon the single question as to the genuineness of the plaintiff’s signature.

The judgment ought to be affirmed,with costs.

Freedman, J.

Although, as a general rule, every person who deals with a moneyed institution, is bound by its regulations, lawfully made, although not communicated to him at all (Warhus v. Bowery Savings Bank, 5 Duer, 71 ; affirmed in 21 N. Y. 543), yet the by-law under which the savings bank resists the repayment of the deposit in this case is not a mere regulation for the return to the plaintiff of her money.

It is invoked to work a forfeiture in consequence of the happening of a certain event, over which the plaintiff has had no control.

There being no evidence of negligence on plaintiff’s part which contributed to the loss, as in Kelly v. The Industrial Savings Bank, 2 Daly, 227, and no proo that the bank had the power and capacity to establish the rule in question, the judgment and order appealed from should be affirmed with costs.

Spencer, J. (Dissenting)

If the pass-book, or bank-book, introduced in evidence, with all its written and printed matter, constitutes the contract of the defendants in the premises, the defense was full and complete, and the complaint should have been dismissed.

There was no fraud, nor wrong, nor gross neglect, on the part of the bank or its officers, established or alleged by the plaintiff. In fact, the evidence frees the defendants from all imputation of wrong in the premises. This is only a question as to which party shall bear a loss incurred without the fault of either.

In this pass-book was printed, among others, a rule providing that “The secretary will use his best efforts to prevent frauds ; but all payments made to persons producing the deposit books, shall be deemed good and valid payments to depositors respectively.”

The defendants paid sixty dollars to a man who had and presented the pass-book in which this sum was noted as paid, and at the same time this person presented an order for the money, purporting to be signed by plaintiff; and the signature was so much like her genuine signature that she could hardly deny the same to be hers on the trial, and I think the weight of testimony establishes beyond all question that, when first shown to her, she freely admitted it to be her signature. The jury, however, have found substantially that it was a forgery, and the question for review must be considered upon that position.

I hold that the defendants received this deposit subject to their rules and regulations as far as the same were set forth in the pass-book that was given to plaintiff, and in which the deposit was acknowledged.

The liability of the defendants must be based on the contract, and the contract included this rule, under and subject to which they received this deposit. Their liability, as limited by these rules, printed in the passbook, is all that the plaintiff can or should claim and enforce in the premises. This pass book and its rules and regulations was the contract they offered to enter into with plaintiff, and it plainly stated the terms on which they would receive plaintiff’s money; and plaintiff, by depositing the money, and having it entered, and taking the bank-book as a voucher or evidence in her favor, accepted the terms of the contract thus offered, and she must be held thereby. The rule of law governing contracts with common carriers does not apply here, nor does the rule of commercial law that applies to ordinary bankers and banks of loan and deposit, and which holds the latter responsible for any money of their customers, paid on forged or altered checks and orders.

Savings banks are instituted for the benefit of their depositors as well as their stockholders, and the former are individually and collectively interested in and affected by these rules and regulations, for they receive a consideration for their deposit, namely, interest on their savings, the magnitude of which is in proportion to the profits of the business.

I think the salutary and safe rule of law for them is this : that depositors in savings banks are bound to inform themselves, and shall be presumed to know the rules and regulations of the institution who pays them for the use of their savings, in the way of interest and safety. But when, as in this case, the rules and regulations of the bank that control and govern the reception and payment of deposits are printed in and upon the pass-book, the voucher that acknowledges the loan or deposit they have made, I have no doubt whatsoever that they will be presumed to know what they are, and to be held subject to them ; therefore I hold that these rules printed in the pass-book are a part of the contract between the bank and its depositors, and the deposits are received subject to and in accordance with those rules.

These savings institutions have been established and have grown up in this country for the convenience, interest, and the necessities of the poor.

The greater portion of all the deposits therein, and payments therefrom, are in small sums, and from a great multitude of persons, thus requiring the work of reception and payment during business hours to be done with great rapidity; and as a great many of the depositors can neither read, write, nor speak the English language, the work must be done with great simplicity. These facts have caused the adoption of the deposit or pass-book system. The very name popularly given to these books denote their service and use. They are given to the depositor as a pledge, token, or pass, that the money received and noted therein will not be .paid to any person, upon order or otherwise, unless this token or pass is produced.

The simplest minded of our people can understand this simple system. That the pass-book acknowledges the receipt of the money, and that no one can obtain their money from the bank without this pass, and if they take care of that their money is safe, and beyond the reach of any one but its rightful owner.

It would be onerous and unjust upon these institutions and upon their depositors if the rules of ordinary banks of deposit, in regard to the payment of checks and deposits, were strictly enforced, thus holding them liable for skillful forgeries of orders or checks presented with the pass-book, although they and their customers have agreed that the possession and presentation of the pass book shall authorize the payment.

This judgment and order should be reversed, and a new trial ordered, with costs to abide the event.  