
    Christian Kummel, Resp’t, v. The Germania Savings Bank, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889)
    Banks and banking—Payments to third parties—Liability—Savings BANKS.
    A savings bank is liable to a depositor for any payments made out of his deposit to third parties, in contravention of a contract of deposit providing that no payments shall be made unless the depositor calls for the same in person, or by attorney duly constituted by writing, although the contract contains » subsequent provision that the bank shall not be held liable for any fraud committed by producing the bank book.
    Appeal from a judgment entered in favor of the plaintiff on a verdict of a jury, and from an order denying a motion for a new trial.
    This action was commenced to recover a balance deposited at various times by the plaintiff with the defendant.
    It was conceded, both on the trial and on the hearing of the motion for a new trial, that the plaintiff had not been paid this money, but it was claimed on behalf of the defendant that as the by-laws of the defendant, printed on the bank-book in the possession of the plaintiff, contained a clause that “the bank will not be responsible to any depositor for any fraud committed upon the officers in producing the pass-book and drawing money without the knowledge or consent of the owner,” and as this, with the other by-laws, formed the contract between the parties, and as the person who obtained this money did present that pass-book at that time, that therefore the defendant is absolved from all responsibility toward the plaintiff.
    
      William D. Veeder, for app’lt; Hirst & Basquin, for resp’t.
   Pratt, J.

The case in 57 N. Y., 423 is not in point. There the contract between the parties provided that any payments made to persons presenting the deposit books should be valid payments to the depositors.

In the case at bar the contract provides that no payment should be made unless the depositor call for the same in person, or by attorney duly constituted, by writing signed and acknowledged.

It might well be supposed that the contract was drawn, in view of the decision in 57 N. Y., to give confidence to depositors that their money would be safe, and forthcoming when demanded.

Upon the terms of the contract, it is not easy to see why plaintiff was not entitled to a more favorable direction to the jury than he in fact received. For no claim was made that plaintiff had executed any written order for payment, and if he did not himself receive the disputed payments their invalidity seems clear.

If it be argued that the subsequent provision in the contract is to the effect that the bank will not be liable for any fraud committed by producing the bank book, it may be answered that if the provisions are inconsistent the prior provision must stand, and the later one be rejected. 2 Parsons on Contracts cited; Neudecker v. Kohlberg, 3 Daly, 407.

It should be also said that the judgment given .below does not in any just sense hold defendants liable for a fraud committed by a depositor. The liability to which they were held is to pay money they received from plaintiff, and for which they had not discharged themselves by a payment authorized by their contract.

Judgment affirmed, with costs.

All concur.  