
    *Winter against The President and Directors of the Bank of New York.
    If two persons enter a bank at the same time, one with money and the other without, the latter of whom informs the cashier it is to be deposited on his account, this circumstance alone, without any acts of the other party confirming such account, will not justify the cashier in carrying the money to the account of the party saying it is his; if he do, and pay money or give credit, on the strength of such deposit, to such person, the bank must hear the loss if any arise.
    Assumpsit, to recover one thousand dollars bad and received by the defendants to the use of the plaintiff.
    Prom the evidence at the trial, these appeared to be in substance the circumstances of the case: The money in question .was one of several consignments to different people, shipped under regular bills of lading, from New Orleans to New York. On the captain’s arrival, as the consignees did not come for their property, he put the whole into a box, in order to deposit it into the bank, but when he got there he found the hours of business over, and the outer doors just closed. At this moment, one Arnold, with whom he had formerly been acquainted, stepped up to him, and told him, if he wanted to go into the bank, he might still enter at the back door, and that he would show him the way. This proposal being accepted, Arnold, followed by the captain with the cash, proceeded to the back door, and went into the bank. So soon as they had entered, Arnold, leaving the master with his .money, pushed on to a further part of the building, where the cashier was sitting, and informed him, in such a manner, however, as not to be heard by the captain of the vessel, that he had brought about $4,000 to deposit, which he begged to be received. This being consented to, he then requested to have given up to him, and obtained, a note that was over due, his check for $1,600 certified to be good, another note, under protest, credited to his account as paid, and a note of one Armstrong’s for $1,400, deposited as a collateral security for one of Ms own for $750. Having accomplished bis object be took bis leave.
    While these things were transacting with the cashier, the captain was inquiring of the porter and one of the clerks whether his cash could not, though after banking hours, be received for the night. Being answere'd in the affirmative, he asked at what hour he could come to count it; and, upon being informed the next morning at ten o’clodk, he assisted the clerk in removing it into a back room, where he left it and went away. On returning the morning after, he demanded his money which was delivered to him, when he counted it out and immediately after-wards inquired for the *cashier to deposit it with him, on account of the consignees. On going -to him an explanation took place, which ended by the captain’s showing the bills of lading, and the bank’s refusing to pay the money to the consignees, in consequence of which the plaintiff commenced the present action, and obtained a verdict. The defendants now applied to set it aside, as contrary to evidence.
    The only question was, whether the conduct of the captain was, from the testimony, such as to sanction the fraud of Arnold, and thereby throw the loss on the consignees, in capacity of whose agent he then acted ?
    The arguments of counsel being directed only to show how the balance of evidence would turn, and that being accurately weighed in the opinion of the court, it is unnecessary to do more than state the decision, which was delivered by
   Spencer, J.

After a verdict for the plaintiff, under an unexceptionable charge from the judge who presided, the court are called upon to set aside this verdict, as against the weight of evidence. There is no imputation of fraud or design either in the captain, Living, or the officers of the bank. But the question is, who produced the mistake ? 2 Wasb.' Eep. 245. It is a principle, not controverted,' that where one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain’it. Testing the evidence by this equitable principle, I proceed to examine the conduct of Captain Living; for, if there has been no culpability on bis part, the plaintiff is entitled to recover.

He states, that not haying been called on by the consignees of the money which he had brought from New Orleans, he thought it best to deposit it in the bank; he arrived there after it was closed, and there met with Arnold, by whose directions he went to the rear part of the bank, met with the porter and one of the clerks, to whom he communicated his wishes to deposit the money, and after some conversation it was left in the bank for safe keeping, Captain Living observing that he should come the next morning at the opening of the bank and deposit it. Arnold, it seems, informed the porter of the bank that it was his money, and this claim was twice repeated in the presence of Captain Living. If he had heard this conversation, and remained silent, it would have brought him within the rule of enabling a third person to occasion the loss. But -he says that owing to deafness he did not hear what passed. It has been urged that this infirmity of Captain *Living ought to have rendered him more cir-cumspeet, and, as he must have seen Arnold conversing with the porter, he should have been more explicit, having been warned that Arnold was a dangerous man. It is, we think, not a correct position, that,Living was blamable in not contradicting what he did not hear, and could not have imagined; the infirmity of deafness, instead of being a misfortune, would savor of culpability, and, inasmuch as Living was the bearer of the money, as he never enabled Arnold to occasion the loss, and the omission arose from the officers of the bank in not asking him if this money was Arnold’s, and as the whole merits of the ■ case have been considered by a jury, who have decided in favor of the plaintiff, we do not think it a verdict against the weight of evidence, and therefore refuse the motion for a new trial,

New trial denied. 
      
       Money paid into the hands of a clerk in á bank, who is not the regular receiving clerk, nor at the time acting in aid of such receiving clerk, is not a payment to charge the bank; and if the clerk to whom it has been made abscond with, or embezzle the money, it is the loss of the person wto paid it to him. Manhattan Company v. Lydig, 4 Johns. Rep. 377.
     