
    Mary E. Daniels, Resp't, v. Empire State Savings Bank of Buffalo, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 23, 1895.)
    
    1. Bams—Savings—Officers.
    Where an unmarried woman after making a deposit in a bank goes to Europe for a time but prior to her departure leaves one or more checks signed by her in blank with the cashier with instructions to use them in accordance with directions which he might thereafter receivefrom her, and upon her return from Europe marries, the agency thus conferred upon the cashier is for a particular purpose and covers only such time as she should he absent from the country and terminates with her return.
    3. Same—Estoppel.
    In such case, the principle that, when one of two innocent parties must suffer by reason of a fraudulent transaction, it shall be the one whose act made it possible for the fraud to he perpetrated, does not apply».
    Appeal from a judgment in favor of plaintiff.
    The defendant is a savings bank organized and existing under the laws of this state, and carrying on the ordinary business of a savings bank at the citv of Buffalo. Prior to September, 1892, it transacted business under the name of the The National Savings Bank of Buffalo. From the year 1868 until the commencement of this action, the plaintiff had been a depositor in and had had large financial transactions with, the bank. During all that time, and up to the latter part of June, 1892, one Edward S. Dann was the secretary and treasurer and the general financial manager of the bank» Upon the 17th day of June, 1892, the plaintiff's husband took the sum of $10,075 in currency, which had that morning been paid in upon a motgage, to the bank, and left it with Mr. Dann. He did not have his wife's pass book with him at the time of leaving the money, and it appears that Mr. Dann, after counting the same, made a package of it, and placed it in the vault, instead of mingling it with the other funds of the bank. Upon the following Monday, the 20th of June, the state bank examiners having instituted an examination of the bank, discovered that Dann had been, for many years, appropriating the moneys of the bank, and that, to a considerable extent, he had used the plaintiff’s account to conceal his fraudulent transactions. Soon after the discovery, was made the bank vault was opened, and it was then found that the money left by the plaintiff’s husband the Friday previous had been appropriated, and in its place wms substituted a slip, in Dann’s handwriting, which read as follows : “June 17, 1892. $10,075 belongs to Mary E. Daniels, put in for mortgage, per Judge Daniels.” After the defalcation of Dann was discovered, and criminal prosecution had been threatsned, he restored $10,000 of the money abstracted by him. Upon further examination of the affairs of the bank a check was discovered which bore the signature of the plaintiff, and was dated the 16th day of April, 1879, for the sum of $4,000. This check had not been charged against the plaintiff upon her pass book, although a lead-pencil entry thereof had been made, under the date of April 16, 1879, by Mr. Dann. This action was brought for the purpose, among other things, of compelling the defendant to credit the plaintiff with the sum of $10,075 as a deposit of that amount; and the defendant, on the other hand, sought to charge the plaintiff with the $4,000 check. The trial court found that the $10,075 was left by the plaintiff’s husband at the bank by way of deposit, and that the bank should be charged with the same, and it also refused to charge the plaintiff with the $4,000 check.
    George A. Lewis, for app’lt; Charles Daniels, for resp’t.
   ADAMS, J.

The evidence furnished by the plaintiff upon the trial of this aetion abundantly justified the conclusion reached by the learned trial court in regard to the transaction of June 17,1892. No exception has been taken to such conclusion, and therefore, so far as that feature of the case is' concerned, it is entitled to no further consideration. The main contention upon the argument, and the only one which the appellant is entitled to urge upon the attention of this court, relates to the $4,000 check. It dppears that in 1875 the plaintiff, whose name was Mary E. Enos, went to Europe for the purpose of spending a year in travel; that prior to her departure she left one or more checks, signed by her in blank, with Mr. Dann, with instructions to use them in accordance with directions which he might thereafter receive from her; and the check in question was undoubtedly one which had been so left by her with Dann. He had subsequently filled it up, and dated it as of April 16, 1879,"although prior to that, time she luid returned from Europe and married her present husband, Judge Charles Daniels. There is no evidence that- the. check was ever paid, or that it had ever gone through the bank; and the reasonable inference to be drawn is that it was used from time to time by Hr. Dann to cover some of his fraudulent transactions with the bank. Upon this state of facts, it is difficult to discover upon what theory it can be claimed that the learned trial court erred in its refusal to charge the plaintiff with the amount of this check The learned counsel for the appellant advanced several propositions, upon the argument, in support of his contention, none of which we think is tenable. The whole ground is so completely covered by the elaborate opinion of the learned justice that but little need be added to what is there so well said.

Considerable stress now appears to be laid upon the fact that the check in question was in no way altered by Dann, and that, in filling it up as he did, he was acting within the scope of his authority as the plaintiff’s agent. The obvious answer to this eonitention, however, is that the agency conferred upon Dann by the plaintiff was for a particular purpose, and to cover only such time as she should be absent from the country, and it undoubtedly terminated with her return to America in 1876. Two years thereafter she changed her name from Enos to Daniels. These facts, were, of course, all well known to Dann, and his knowledge was the knowledge of the bank. Gibson v. Bank, 98 N.Y. 87, And, with this knowledge, it is difficult to see anything in this contention upon which the defendant can rest its claim that the plaintiff should be charged with the amount of this check.

Again, it is urged that the bank is entitled to the benefit of this check, upon the principle that, when one of two innocent parties must suffer by reason of a fraudulent transaction, it shall be the one whose act made it possible for the fraud to be perpetrated. This principle might be invoked with great propriety if the circumstances of the case were different; in other words, if Dann sustained by the relation of a third party simply, and had no connection with the bank. But here, confessedly, he was not only the secretary and treasurer of the bank, but he had the general charge of its affairs, and was in fact himself the bank; and, bearing this intimate relation to the bank, it would be a strange perversion of the rule to hold that he might perpetrate a fraud like the one in question, and yet the bank itself be permitted to profit thereby.

We are unable to discover any error in the disposition made of this case in the court below, and are therefore of the opinion that the judgment appealed from should be affirmed.

All concur.  