
    Kummel v. Germania Sav. Bank.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Banks and Banking—Savings Banks—Deposits.
    A savings bank is liable to a depositor for payments out of his deposit made by it to a third person who presents the book, without a written order from the depositor, where the contract of deposit provides that payments shall be made only to the depositor in person, or to his attorney duly constituted by writing, though it also provides, in a subsequent clause, that the bank will not be liable for any fraud committed in producing the bank-book, as, if the two provisions are inconsistent, the later one must be rejected.
    
      Appeal from circuit court, Kings county.
    Action by Christian Kummel against the Germania Savings Bank, to recover a sum of money deposited by plaintiff with defendant, and paid by the latter to a third person who presented the bank-book, but who had no written authority from plaintiff. Judgment on verdict for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Wmi J). Vedder, for appellant. Hirsh <& Rasquin, (Hugo Hirsh, of counsel,) for respondent.
   Pratt, J.

The case in 57 N. Y. 423, (Schoenwald v. Bank,) is not in point. 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 payments shall 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 hot 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, 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 Pars. Cont., 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 whicli they had not discharged themselves by a payment authorized by their contract. Judgment affirmed, with cost's.  