
    William R. Tobin, Resp’t, v. Manhattan Savings Institution, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 4, 1893.)
    
    1. Appeal—Dismissal op Complaint.
    A defect in the proof, existing at the close of plaintiff's testimony, is cured by evidence thereafter adduced by either party.
    2. Savings Bank—Duty.
    A provision in a pass book that, while the officers of the bank will en- • deavor to prevent fraud on depositors, all payments made to any person producing the pass hook will be valid, does not relieve the bank from the exercise of ordinary care to prevent fraud by the person presenting the pass book.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff at trial term and also an order denying defendant’s motion on the minutes for a new trial upon the grounds specified in § 999 of the Code of Civil Procedure.
    Action by plaintiff, a depositor, to recover moneys deposited by him with the defendant savings bank. The latter claimed to have paid the moneys upon a draft or withdrawal slip purporting to have been signed by plaintiff, but the signature to which plaintiff alleged to be a forgery.
    ' Ira D. Warren, for app’lt; Frederick B. House, for resp’t.
   Bischoff, J.

The judgment of affirmance of the court below precludes any review on this appeal of the weight of the evidence, and the only exception which is available to inquire whether there was any evidence to support a verdict for plaintiff is the one taken on defendant’s behalf to the denial of a motion to dismiss the complaint made when the cause was finally submitted. A defect in the proof existing at the time of a like motion at an earlier stage of the trial is cured by evidence thereafter adduced by either party, Meyers v. Cohn 4 Misc. R. 185, 186; 53 St. Rep. 223.

Plaintiff, by occupation a bricklayer, was a depositor of the defendent savings bank, and at the time, of opening his account in September, 1889, received a passbook in which among other things was printed the following: “The officers and clerks will endeavor to prevent frauds on depositors, but all payments made to any person producing the proper deposit pass book shall be good and valid payments.’’ Plaintiff kept his pass-book locked up in his trunk at his boarding house. On April 22d, 1892, having occasion to use it, he discovered that the book had been purloined and replaced by some person unknown to him, from the fact that there appeared- therein an entry of the withdrawal of nine-hundred and sixty-three dollars on April 13th, 1892. Upon inquiry at the bank on the next succeeding day the teller exhibited to plaintiff a draft, or withdrawal slip, the date of which corresponded to the date of the entry which was admittedly in the handwriting of the assistant teller, teller, Curran. The draft purported to have been signed by plaintiff and the bank claimed to have paid out the amount on the faith of it to a person who presented the pass book with the draft. Plaintiff, however, insisted that the signature to the draft was a forgery; and, upon the bank’s refusal to refund the amount, he instituted this action to recover the aggregate amount deposited by him, less the conceded withdrawals, which exceeded the amount of the disputed draft by three hundred and twenty-five dollars and forty-four cents. The jury awarded him the amount demanded.

Notwithstanding an agreement between the depositor and the bank to the effect as stated in the printed condition in plaintiff’s deposit pass book the bank continues liable for the moneys deposited if with the exercise of ordinary care it could have prevented the perpetration of a fraud upon it by the person presenting the pass-book. Saling v. German Savings Bank, 15 Daly, 386; 27 St. Rep., 975; Appleby v. Erie Co. Savings Bank, 62 N. Y., 12; Allen v. Williamsburgh Savings Bank, 69 N. Y., 314; Smith v. Brooklyn Savings Bank, 101 N. Y., 58; Kummel v. Germania Savings Bank, 127 N. Y., 488; 40 St. Rep., 252. If no such agreement is had the bank is absolved from liability to the depositor for return of the moneys deposited only upon payment to him or his order. Plaintiff testified that the signature to the disputed draft was not written by him or by his authority. This evidence therefore required submission of the question of genuineness to the jury assuming that there was no agreement to the effect as above mentioned. Assuming, however, that the evidence conclusively established the agreement it was nevertheless a question of fact to be determined by the jury upon sufficient evidence whether, or not, the bank did omit the exercise of ordinary care at the time of the payment of the disputed draft. If there was such evidence defendant’s motion for dismissal of the complaint was propérly denied.

We are of the opinion that the facts are reasonably open to an inference that the bank did not use ordinary care to prevent the perpetration of the fraud upon it. The want of ordinary care arises from the omission to do what an ordinarily prudent person would have done under like circumstances. An ordinary, universal, and main, if not the main, test of identity of drawer and depositor, is the identity of the signature to the draft with the signature of the depositor retained by the bank. This test is applied by a comparison of the several signatures. If the teller had testified that such a comparison was made in the present instance his testimony would not have been conclusive of the fact, though it remained unchallenged by other testimony, since it was that of a person interested in the event of the action. Canajoharie National Bank v. Diefendorf, 123 N. Y., 191; 33 St. Rep., 389. But it nowhere appears to have been made. Both, Bird, the teller, and Stiles, the secretary of the bank, and witnesses for it, admitted on cross-examination that there was “ marked ” and “ striking ” dissimilarity between plaintiff’s signature in the bank’s signature book and the signature to the disputed draft, and the testimony of both witnesses developed the.fact in the presence of the jury, that the discrepancies were readily discernible upon comparison. Whether, or not, the discrepancies were casually discernible, or required more than ordinary application for detection, was eminently a question of fact to be determined by the jury from the evidence and an inspection of the several signatures, and if they concluded that the discrepancies were obvious to casual or ordinary examination, they might still further conclude that if the teller had compared the signatures he would have detected the discrepancies, and that thus there would have been excited within him sufficient suspicion to have induced him to use greater caution before accepting, or paying the disputed draft, or that, having failed to observe the discrepancies, he did not avail himself of the ordinary caution of comparing the several signatures, and so was remiss in. the observance of ordinary care. Though the tiral judge might have differed, upon an inspection of the several signatures, from the subsequent conclusions of the jury, the evidence required submission to them if it was legitimately susceptible of conflicting views. For the same reason we are precluded from saying that there was no evidence, or no sufficient evidence to sanction a verdict for the plaintiff.

Defendant’s exception taken to rulings relative to the admission and exclusion of evidence appear to be without merit Articles XIX to XXTX both inclusive, of defendant’s charter and by-laws, are omitted from the record of this appeal. This may have been accidental, but since the charter and by-laws, so far as they do appear, are neither relevant nor material to the question litigated on the trial, it is not competent for us to say that the trial court erred in excluding them. The judgment should be affirmed.

Judgment affirmed, with costs.  