
    Joseph Kress, Resp't, v. The East Side Savings Bank, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Savings banks—Negligence.
    A savings tank having paid out a deposit upon the presentation of a stolen pass-book and forged check, in order to absolve itself from the claim made by the depositor for the return of his deposit, must show affirmatively "that it had complied with the provision of § 28, chap. 871, Laws of 1875.
    Appeal by the defendant, The East Side Savings Bank, from a judgment entered in Monroe county June 3, 1892, upon the verdict of a jury in the county court, and also from an order of that court denying defendant’s motion for a new trial made upon the minutes, in a case brought to that court by an appeal by the defendant from a judgment of the municipal court of the city of Rochester.
    
      O. G. Davy, for app’lt;
    
      James S. Havens, for resp’t
   Macomber, J.

The plaintiff was a depositor in the bank of the defendant, which is a savings bank organized under the laws of the state of Mew York; and, on the 9th day of July, 1891, had a balance to his credit in that bank of $164.66. On the last named day the plaintiff’s pass-book was presented to the bank by one Wendell Kress, a brother of the plaintiff, and this balance, with interest thereon, was paid to Wendell Kress by the officers of the bank. But the check upon which this deposit was withdrawn was a forgery, and the bank-book of the plaintiff, which was presented to the bank, was stolen by Wendell Kress from the true owner for the felonious purpose of obtaining .such moneys for his own use.

This fact is abundantly established by the evidence, and the verdict of the jury is conclusive thereon. Indeed, had the jury found that Wendell Kress had any authority from the plaintiff so to withdraw these moneys, its verdict would not have been sustained by any evidence in the case, except by the testimony of certain witnesses, called experts, who were called to testify as to the identity of the handwriting of the plaintiff and of "his brother, Wendell.

The original deposits amounted in all, with interest, to $179.66, and the first of them was made in the year 1889. On June 26, 1891, the plaintiff, himself, personally drew out the sum of fifteen dollars. The only defense interposed by the defendant entitled to much consideration is, that liability cannot attach to it because its officers exercised proper care in paying out these moneys to Wendell Kress. Among the by-laws of the defendant are these : By-Law 15. “On making the first deposit each depositor shall be required to subscribe his or her name in the signature book of the bank, thereby signifying assent to the regulations and by-laws of the bank.” By-Law 20. “ The secretary shall endeavor to prevent frauds ; but all payments made to persons producing the deposit book or duplicates thereof, issued by this bank, shall be deemed valid payments to the depositors respectively.”

These by-laws are printed both in English and German in the pass book presented by the defendant to depositors and the plaintiff, who is a German, when he made his first deposit, signed his' name in the signature book of the bank.

It having been thoroughly established that the balance of the plaintiff’s deposit was withdrawn from the bank through forgery, it was incumbent upon the defendant, in order to absolve itself from liability, to show that it had conformed to the act of 1875, Laws of 1875, chap. 371, and so rendered effective rules 15 and 20, above quoted, thus preventing a recovery by the plaintiff substantially upon the ground of his own loches in permitting his bank book to get into the hands of another person. Shipman v. Bank of the State of New York, 126 N. Y., 318; 37 St. Rep., 376. The authority for the adoption by the banks of the by-law No. 20, above quoted, is § 23 of the act of 1875, which is as follows: “ The sums so deposited, together with any dividends or interest credited thereto, shall be repaid to such depositors respectively, or to their legal representatives, after demand; in such manner, and at such times, and after such previous notice, and under such regulations, t as the board of trustees shall prescribe, which regulations shall be put up in some conspicuous place in the room where the business of such corporation shall be transacted, and shall be printed in the pass books or other evidence of deposit furnished by the corporation, and shall be evidence between the corporation and the depositors holding the same, of the terms upon which the deposits therein acknowledged are made.”

In order to absolve itself from the claim made by the plaintiff for the return of his deposits to him, there was devolved upon the defendant the duty to show affirmatively that it had complied with the provision of § 23_ of chap. 371 of the Laws of 1875, which section remains unaltered in the revision of 1882. Chap. 409, Laws of 1882. It is true, this regulation was printed in the pass book delivered to the plaintiff, but it was never read by him.

This provision for the printing of the regulations in the pass books, and posting them in a conspicuous place in the room where the business of the corporation is transacted, is not by any means a contract entered into between the plaintiff and the defendant. It is a positive, affirmative provision of the statute requiring the defendant to do these things before it can avail itself of this defense, which is wholly statutory and unknown to the common law. Having undertaken to establish this defense, it was incumbent upon the defendant to establish it in accordance with the terms of the statute, and, failing in that, we think it has failed altogether in its defense.

The payment of the deposit to the forger, Wendell Kress, was made by the bookkeeper, who, at times, discharged the duties of teller or cashier. He was unacquainted with the plaintiff, and was aware of such fact of want of knowledge when he paid over the money to Wendell Kress. He had no recollection of comparing the signature to the check with the signature on the book of the bank, though he, from his general course of business, had no doubt he had done so. Knowing that twenty-four days before this time the bank had paid upon the true signature of Joseph Kress a portion of his deposits, he did not look at that signature. The signature book showed that the residence of Joseph Kress was 15 Cleveland Park; but he did not take the precaution to ask Wendell Kress bis place of residence, though he admits that such a question might have led to a discovery of the fraud and forgery. Indeed, he made no inquiry of Wendell whatever, not even to the extent of asking him if he were Joseph Kress. He seems to have neglected the plain and ordinary precautions of detecting any fraud that might be attempted to be perpetrated. Kummel v. Germania Savings Bank, 127 N. Y., 488; 40 St. Rep., 252; Cornell v. Emigrant Savings Bank, 9 id., 72; Saling v. German Savings Bank, 27 id., 975; Fox v. Onondaga Co. Savings Bank, 25 id., 672.

Certain other alleged errors in the record are brought to our attention by the learned counsel for the appellant, but after examining them in detail, we do not find in them any reason for disturbing the judgment appealed from.

The charge of the learned county judge, as a whole, was quite as favorable to the defendant as the facts of the case would warrant.

The judgment and order appealed from should be affirmed.

Judgment and order of the county court of Monroe county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.  