
    Ann Farmer, Adm’rx, etc., App’lt, v. The Manhattan Savings Institution, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 26, 1891.)
    
    1. Banks and banking—Savings bank—Pass book.
    The reason for the rule in regard to the presentation of a savings bank pass book, entirely ceases upon the death of the depositor, and if the bank pays to anybody other than the legal representative of the deceased, it does it at its peril.
    3. Same—Payment to wrong person—Negligence by bank.
    On the death of a depositor, one D., presented the pass book to a saving bank, and payment being refused produced an affidavit that the book had been given her causa mortis and a certificate from one 0. that he had been appointed administrator and had been discharged, and that said D. was entitled to receive the money. On being again refused, D. brought action, her attorney preparing both complaint and answer and the referee occupying offices with attorney for defendant, plaintiff's attorney preparing the decision and paying all the expenses of obtaining the judgment, without costs against defendant. On the subsequent trial of this action the court refused to allow plaintiff P. to go the jury upon the fact whether defendant was negligent in paying to D. under all the circumstances. Held, error.
    Motion for new trial on exceptions ordered to be heard in the first instance at the general term.
    
      Abram Kling, for app’lt; Ira D. Warren, for resp’t.
   Van Brunt, P. J.

—On the 12th of February, 1862, one Henry Fitzsimmons, a Catholic priest, a resident of Wilkesbarre, Pa., opened an account with the defendant. When he opened this account he signed his name to the signature book containing the rules and regulations of the defendant, among which was the following:

“ The officers and clerks will endeavor to prevent frauds on depositors, but all payments made to any person producing the proper pass book shall be good and valid payments.” And also the following:

“ On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representative.”

A bank book was at the same time delivered to him, containing an entry of the deposit made at the opening of the account. He continued to make deposits which were entered in the same book up to the 31st of July, 1872. In June, 1874, he died at Wilkes-barre, and in July, 1874, Francis Caren, a Catholic priest, was appointed administrator of his estate. Before the death of Fitzsimmons Ann A, Devlin came into possession of this bank book and repeatedly presented the same to the defendant and demanded payment of the money, which the defendant refused. In July, 1886, the said Ann A. Devlin presented to the bank this book, her own affidavit to the effect that the book had been given to her causa mortis, a certificate that Caren had been appointed administrator of Fitzsimmons’ estate and an affidavit or statement by said Caren that Ann A. Devlin was entitled to receive the money, upon the face of which statement it also appeared that on the 18th of April, 1877, the said Caren had been discharged as administrator, and again demanded payment. Thereupon, in 1888, Ann A. Devlin commenced an action against the deiendant to recover this deposit. An answer was interposed and the case was referred to a referee and after a trial, which resulted in a judgment against the defendant for the amount of the deposit; the defendant paid this judgment to Ann A. Devlin in April, 1888, and received fnom her the bank book given to the intestate in 1862 in satisfaction of the judgment.

It further appeared that the plaintiff’s attorney prepared the complaint and the defendant’s answer, and that the referee who was agreed upon occupied offices in the same building with the attorney for defendant and that the plaintiff’s attorney prepared the decision and paid all the expenses of obtaining the judgment and entered the same without costs against the defendant. On the 5th of October following the payment of the judgment the plaintiff in this action took out letters of administration in this state and commenced this action to recover the deposit from the defendant.

Upon the trial these facts appeared and the plaintiff requested to go to the jury, among other things, upon the point as to whether the defendant was negligent in paying the money to said Devlin under all the facts presented by the testimony in the case. This request being refused and an exception taken, the court dismissed the complaint and an exception was taken thereto; which exceptions the court directed to be heard in the first instance at tne general term.

We think that the refusal to submit this question of negligence to the jury was clearly error. The administrator having been discharged from his trust, his representations in regard to the right of Ann A. Devlin to receive this money could have no greater or other effect than the representations of a stranger in regard thereto.

Whatever might have been the position of the parties, had the rule of the bank, that all payments made to any person producing the pass-book should be good and valid payments, stood alone, it is unquestionably the fact that this rule is very materially qualified by the subsequent rule which provided that on the decease of any depositor the amount "standing to the credit of the deceased shall be paid to his legal representative.

It may be a question worthy of consideration hereafter whether in the case of the decease of a depositor the prior rule does not become entirely inapplicable, because of the subsequent one. The defendant knew that the depositor had died; it had resisted the payment of this money upon the production of the bank book, and it was not until this collusive judgment was obtained that such payment was made.

It is difficult to see upon what theory the defendant supposes that a judgment of this kind could afford any protection in the payment of the amount deposited. The defendant knew that the depositor was dead, had its attention necessarily called to the rule that on the decease of the depositor the amount standing to his credit shall be paid to his legal representative. The reason for the - rule in regard to the presentation of the pass-book entirely ceases upon the death of the depositor. That .rule is to protect the bank in payments made to persons apparently having authority to collect when they are ignorant of the fact that by opertion of law there has been devolution of title.

Where there has been a devolution of title by operation of law, such as occurs upon the decease of a depositor, the rules of the defendant are explicit that payment will only be made to the legal representative of the deceased. Therefore, if they pay to anybody else, they necessarily pay at their peril, and it is for them to justify the payment by showing that the party had a legal right to receive the money in question. The two roles operate upon an entirely different state of circumstances, the one being to protect the bank against the carelessness of the depositor, and the other to protect the depositor when he is no longer in a position to protect himself. The defendant seems, in the payment mtade in the case at bar, to have lost sight of this latter rule, and to have acted in violation of its provisions.

We think, therefore, that the plaintiff was entitled to have this question submitted to the jury, at least, and the exception taken to the refusal so to do should be sustained, and a new trial ordered, with costs to the plaintiff, to abide the final event.

Barrett and Patterson, JJ., concur.  