
    Henry Saling, Resp’t, v. The German Savings Bank of the City of New York, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    1. Savings banks—Negligence—Payment of forged checks.
    In an action by a depositor against a savings bank to recover moneys alleged to have been negligently paid on forged checks, the officer of the-bank whose duty it was to examine signatures! admitted, after comparison, that the checks were forgeries, and stated that he asked no questions of the person presenting them; that the signature was a good imitation,, and that in such case it was the custom to pay without asking questions. Held, that under the evidence the question of defendant’s negligence was for the jury, and that it was error to direct a verdict for defendant.
    2. Same—By-laws.
    A by-law of the bank that it “will not be responsible for frauds committed on the officers by producing the pass-book and drawing money without the knowledge and consent of the owner,” did not excuse the bank for want of ordinary care in making the payment.
    Appeal from order of the general term of the city court of New York, reversing judgment in favor of defendant, entered on verdict directed by the court.
    
      Lewis Sanders, for app’lt; David Leventritt, for resp’t.
   Larremore, Ch. J.

It is not necessary that we should state at any great length our reasons for affirming the order of the general term of the city court reversing the judgment rendered at trial term. The plaintiff was a depositor in the defendant’s bank. It appears that one Rudolph Schwartz, who has since been indicted and convicted for the offense, surreptitiously procured plaintiff’s bank book, personated plaintiff at the bank, forged his signature on several occasions, and thereby collected various sums in plaintiff’s name, which the defendant has charged to plaintiff’s account.

The payment of such sums to Schwartz the defendant interposed as a defence to this action.

The forged signatures were produced on the trial, and compared with the signature of plaintiff in the signature book of the bank, and with other genuine signatures; an officer of the bank, whose-duty it was to examine the signatures upon draft cheques, admitted that, after making such comparison, he could readily distinguish such genuine signatures from the forgeries.

This witness further says that when the man Schwartz presented himself to draw money, he does not think he asked him, Schwartz, any of the questions, as to the birthplace, age, etc., which facts are always set opposite' a person’s name, when he -opens an account, for future identification; that the signature was such a good imitation that the witness did not think he could possibly be mistaken; and that, moreover, he was frequently so busy that he did not have time to ask the questions. The witness further said that on account of the rush of business, if a signature jDresented “is a tolerable good signature, we have it paid without .asking any questions.’’

With this evidence in the case it was error for the trial judge to refuse to allow the jury to pass upon the question whether or not the defendant was guilty of negligence in making the payments. Fricke v. German Savings Bank, N. Y. Law Journal, vol. II., May 11, 1889; Cornell v. Emigrant Industrial Savings Bank, 9 N. Y. State Rep., 72.

The defendant relies upon an ordinance or by-law to which plaintiff subscribed to the effect that the “ Bank will not be responsible for frauds committed on the officers by producing the pass-book and drawing money without the knowledge or consent of the owner.”

In order to sustain the action of the trial judge in directing a verdict it would have to be held that such by-law exonerates the officers of the bank from exercising ordinary care in the making -of payments. In Appleby v. Erie County Savings Bank, 62 N. Y., 12, the by-law involved was in terms much stronger than the -one in question here. It expressly provided that “ although the bank will endeavor to prevent fraud upon its depositors, yet all payments to persons producing the pass-books issued by the bank shall be valid payment to discharge the bank”. Even in that case it was said in the opinion that “ these rules do not dispense with the exercise of ordinary care on the part of the officers of the bank.” It would therefore seem not to be the policy of the law to allow a savings bank to discharge itself from all obligation to •exercise ordinary care, as to the identity of persons presenting pass-books.

In the case at bar facts tending to show negligence in making the payments were adduced from defendant’s own officers, and the issue of negligence should have been submitted to the jury.

The order of reversal should be affirmed.

Daly and Van Hoesen, JJ., concur.

Memorandum, of decisions in which no opinions were filed.  