
    Alexander Ferguson, Respondent, v. The Harlem Savings Bank, Appellant.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Savings bank deposit—When the bank is bound to and has exercised ordinary care in paying.
    A savings bank which has issued to a depositor a pass book containing a by-law providing that “Although the bank will endeavor to prevent fraud and imposition, yet all payments to persons presenting the pass books issued by the bank shall be valid payments to discharge the bank ” is nevertheless bound to exercise ordinary care to avoid payment to the wrong person.
    Uncontradicted proof, made upon its part in an action brought against it by the depositor for an alleged wrongful payment, that the ■ payment was made to a person having the pass book who claimed to he the depositor and who correctly answered all the test questions requisite for identification, sufficiently shows the exercise of ordinary care by the bank and entitles it to the direction of a verdict in its favor and the fact that there was a slight irregularity in the signature does not require the case to be submitted to the jury.
    
      Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury in the sum of $412.31, and also from an order denying defendant’s motion for a new trial.
    The plaintiff complained to the defendant in May, 1903, in regard to the withdrawal, on April 1, 1902, of $300.
    Reuben Mapelsden (Herbert S. Ogden, of counsel), for appellant.
    Appell & Taylor, for respondent.
   Fbeedmak, P. J.

The action was brought to recover the balance claimed by the plaintiff to be due upon his account with the defendant which the plaintiff claimed amounted to $318.61, and which the defendant contended amounted to $18.61 only. At the trial the plaintiff had a verdict for the full amount. The defendant is a savings bank. The plaintiff opened an account with it on December 19, 1899, with a deposit of $400, and thereafter from time to time he made deposits and withdrawals to April 1, 1902. On said 1st day of April, 1902, a draft of $300 signed Alexander Ferguson was presented for payment at the bank, such draft being accompanied by plaintiff’s pass-book. This draft was paid, and at the time of such payment the same was entered in said pass-book, and said book was then and there returned to the party presenting it, and to whom said draft was paid. On April 28, May 12, June 9, July 21, August 4 and October 6, 1902, plaintiff personally made deposits in said bank; and on March 2 and May 4, 1903, he personally made withdrawals from said bank. Each of said deposits was entered in plaintiff’s pass-book at the time they were made and the book returned to him; and each of said withdrawals was entered in plaintiff’s pass-book at the time the money .was withdrawn and the book returned to plaintiff.

During all this time he had the book in his possession, the deposits being entered on one page and the withdrawals, including said withdrawal of $300, being entered on the page directly opposite.

The only question in dispute in this case is in regard to the withdrawal of $300 on April 1, 1902, the plaintiff claiming that the receipt for $300 is a forgery.

For the purposes of this ease it must be assumed that the signature to said receipt is not the signature of the plaintiff and consequently, if there had been no agreement to the contrary, the defendant would have been bound to know that the signature was forged. National Park Bank v. Ninth National Bank, 46 N. Y. 77.

But there was an agreement to the contrary.

The by-laws printed in the pass-book delivered by the defendant to, and accepted by the plaintiff, at the time he opened the account, constituted a contract between the parties (Appleby v. Erie County Savings Bank, 62 N. Y. 12; Warhus v. Bowery Savings Bank, 21 id. 543), and one of them was as follows: “ Although the bank will endeavor to prevent fraud and imposition, yet all payments to persons producing the pass books issued by the bank shall be valid payments to discharge the bank.”

Notwithstanding this special contract the defendant was bound to exercise ordinary care and diligence to avoid a payment to the wrong person, and upon proof of failure to exercise such care and diligence the defendant would still remain liable. Appleby v. Erie County Savings Bank, supra.

The vital question in the case, therefore, is whether the evidence was sufficient to warrant the submission of the case to the jury upon the question whether the defendant had exercised due care and diligence.

The testimony of the officer of the bank who made the payment shows that a few slight irregularities in the signature aroused his suspicion; that he thereupon asked all the test questions requisite for identification; that the person applying for the payment with the pass-book in his possession, and claiming to be the plaintiff, correctly answered each and every one of the said test questions, and that thereupon the payment was made. Under these circumstances the defendant had a right to rely upon the appearances thus presented, and to make the payment called for. Wall v. Emigrant Industrial Savings Bank, 64 Hun, 249; Allen v. Williamsburgh Savings Bank, 69 N. Y. 319; Geitelsohn v. Citizens’ Savings Bank, 17 Misc. Rep. 574.

The testimony of the said bank officer was in no way or manner contradicted or impeached and there was nothing improbable or suspicious about it; and hence full credit should have been given to it, and upon defendant’s motion for a direction of a verdict in its favor a verdict should have been directed against it for only eighteen dollars and sixty-one cents. Geitelsohn v. Citizens’ Saving Bank, supra.

The cases cited by the respondent in support of the proposition that the question whether ordinary care and diligence was used was one to be determined by the jury upon the peculiar facts of each case contained nothing which conflicts with what has been said here. In every one of them there was a doubt as to the proper observance of the rules of the bank. In the case at bar there is not. So the contention of the respondent that a mere difference in the signatures requires the submission of.the case to the jury is not supported by the authorities cited. In Allen v. Williamsburgh Savings Bank, 69 N. Y. 317; Hager v. Buffalo Savings Bank, 64 N. Y. St. Repr. 25, and Sailing v. German Sav. Bank, 27 id. 975, the difference was marked and easily susceptible, and there was no proof that a single test question was put to secure identification. In Tobin v. Manhattan Savings Inst., 6 Misc. Rep. 110, no comparison of signatures was even made, nor any question put.

In the case at bar the difference as between the signatures as shown by the original exhibit is slight and all the means prescribed by the rules of the bank were exhausted to obtain sufficient identification, and it was, therefore, under all the circumstances disclosed, error to submit the case to the jury.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegebich and McCall, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  