
    FRIEDRICH FRICKE, Respondent v. THE GERMAN SAVINGS BANK, Appellant.
    
      Savings bank—negligence in paying forged cheek, evidence as to. Signature clerk, negligence may be shown by his direct and cross-examination, ■ and, a comparison of signatures.
    
    The solution of the question as to whether due care has been taken by the officers and employees of a-savings bank to detect a forgery of the name of its depositor to a check, depends on the degree of significance that would be attributed to the difference between the signature in the signature book and that to the forged check, not by the common person but by the skilled person. ....
    Signature clerk, negligence may be shown by his direct and cross-examination, with a comparison of signatures.
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided March 5, 1889.
    
      Appeal by defendant from judgment entered upon, verdict of jury.
    The facts sufficiently appear in the opinion.
    
      S. Kaufmann, attorney, and Lewis Sanders of counsel for appellant, on the questions considered in the opinion, argued:—
    I. A consideration of the other cases against savings banks will lead to the conclusion exonerating the defendant under its contract. People v. 3d Avenue Savings Bank, 98 N. Y. 661-3 ; Appleby v. Erie Co. Savings Bank, 62 Ib. 18; Allen v. Williamsburgh S. Bank, 69 Ib. 314.
    II. For the first time, in cases of this character against savings banks, the appeal book presents to the appellate court a means of making the same opportunity for the comparison of signatures as that presented to the trial judge for his determination as to whether any negligence was thereby disclosed. The photographs are facsimiles of the original exhibits. Here counsel made a comparison of signatures. The question before this court on the exception to direct a verdict for the defendant is, are the signatures of plaintiff in Exhibit I and in the signature book so dissimilar as, when compared, the discrepancy would be easily and readily discovered by a person competent for the position. “It would not be evidence of negligence if the difference was not marked and apparent, or if it would require a critical examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion.” Appleby v. Erie Co. S. B., supra.
    
    III. To hold the defendant liable under the circumstances of this case, the competency of the signature clerk being conceded, would be to expunge from the contract with the plaintiff defendant’s non-liability for fraud perpetrated upon it by use of the pass book, leaving it liable as a bank of deposit on a forged check.
    IV. Defendant having appealed from the order denying the motion for a new trial, the.facts are before this court for review. A comparison of the signatures before suggested makes it apparent that the verdict is against the clear weight of evidence. The jury must have treated the case as one against a bank of deposit on a forged check.
    
      Isaac Rothschild, attorney, and of counsel for respondent, on the questions considered in the opinion, argued :—
    I. The jury were the sole judges of the facts in the case, and their verdict thereon is conclusive. The question whether the bank, under the circumstances as proven upon the trial, exercised reasonable care and diligence in the payment of plaintiff’s money to a stranger, whether man, woman or boy, although a question upon which the trial justice might be justified in finding against the defendant as a matter of law, was nevertheless submitted to the jury to defendant’s greater advantage, this being a question in the category of questions of fact to be submitted to a jury, and being such a question and properly within the peculiar province of the jury to determine, it should be conclusive and is not the subject for review here. Sheehy v. Burger, 62 N. Y. 558 ; Cook v. N. Y. C. R. R. Co., 3 Keyes 576 ; Stackus v. N. Y. C. R. R. Co., 79 N. Y. 466.
    II. The motion for a new trial on the minutes and exceptions, and for the reason that the verdict was contrary to the weight of evidence, was properly denied. Barrett v. The Third Avenue R. R. Co., 45 New York Rep. 628-632 ; Kelly v. Frazier, 2 Civil Rro. Rep. 325; Gescheid v. Quirk, 5 Ib. 38; Samuels v. Weaver, 14 Weekly Dig. 272; Dunning v. Bowe, 16 Ib. 119.
   By the Court.—Sedgwick Ch. J.

The plaintiff had been a depositor with defendant. A thief stole the plaintiff’s pass book and presented it and a check with the forged signature of plaintiff upon it for the sum of $175, to the bank. The bank paid the money upon the check, and the action was to recover this amount. The defendant did not dispute the existence of these facts.

When the plaintiff opened his account with the bank, he wrote his name upon the signature book of the bank. A clerk of the bank testified that he 'paid the money, after comparing the signature upon the book with the signature upon the check.

The court instructed the jury, that the plaintiff, to recover, should show to their satisfaction that the servant of the bank had been negligent in making the comparison between the signatures; that if there were dissimilarities, the jury should say whether they were such as would lead a person of reasonable prudence, to refuse to act upon the check as genuine, and whether the bank’s servant could by ordinary observation have appreciated the differences. There was no objection to ‘the charge of the court. But the learned counsel on the trial, and by a motion for a new trial, took the position that the preponderance of testimony was, that there was no negligence on the part of the bank.

The exhibits marked in the case consisted of the genuine signature on the book, and the forged check. Photographs of these are in the appeal book. Other exhibits are photographic copies of genuine signatures of plaintiff.

The learned counsel for defendant' maintains, that the preponderance of evidence in favor of defendant appears in the signatures in the book and on the check; that in this case defendant’s negligence of omission to use reasonable care in perceiving dissimilarities between the signatures (Appleby v. Erie Co. Savings Bank, 62 N. Y. 18) was not shown, because the signatures themselves incontrovertibly show that there were no dissimilarities of a kind' that would lead a person, competent for the position of bank-clerk, and using his judgment with a care proportioned to the circumstances, to believe that the signature of the check was not genuine. It is affirmed that, at least, the dissimilarities were not marked and apparent; that it would call for a critical examination to detect them, and as to what was indicated by them there might be an honest difference of opinion between persons competent to judge in such matters.

My own opinion is, that there were dissimilarities which can be pointed out by a common and unskilled person, and that it does not incontrovertibly appear that a skilled clerk would not perceive in them sufficient ground for the belief that the signatures were not made by the same person. It does not, with certainty, appear that the differences were such as would occur in signatures written by one person. The question would be as to the degree of significance that would be attributed to the differences, not by the common person but by the skilled person. The solution of this depends upon the fact of what an expert would be able tp perceive, and upon the testimony as to that in the course of the trial. Such testimony was not given by an expert called for that particular purpose. The clerk, however, was an expert, and from his examination and cross-examination a jury could judge, not only of what wras the effect on his mind caused by his comparing the signatures, but of what would have been the effect if he had given due attention to what the dissimilarities indicated. In my opinion, this was a question for the jury.

If my associate agrees with me, the judgment and order should be affirmed with costs.

Truax, J., concurred.  