
    Benjamin Schwartz, Doing Business and Trading under the Name of “Kramer and Co.,” Respondent, v. The State Bank, Appellant.
    First Department,
    December 3, 1909.
    Banks — deposit slip in favor of third party — when bank not liable to depositor.
    Where a plaintiff when, offering checks to his bank for deposit presented his own 1 bank book but made out a deposit- slip headed with the name of another person who was also a depositor, whereby the amount, although entered- in the plaintiff's book, was credited to the other person on the books of the bank, he cannot recover the amount of the deposit from the bank.
    The plaititiff’s bank book .did not constitute an account between him and the bank, but was simply a receipt open- to explanation; nor does the mere fact that- á customer pays money into a bank necessarily create the relation of debtor and creditor between them, as it is common for one to deposit money to the credit of another;
    Such- depositor cannot recover from the bank on the theory of .negligence, for his own initial negligence in making out the deposit slip led to the error.
    Appeal by the defendant, The State Bank, from an order of the Appellate Term df the Supreme Court-, entered in the office' of the clerk of the county of New York on- the 7th day of May, 1909, reversing a judgment of the Municipal Court of- the city .of New York in favor of the defendant rendered on ..the 4th day of December, 1908. ' -
    
      Moses Feltenstein, for the appellant.
    
      Jacob S. Strahl, for the respondent.
   Scott, J.:

The defendant appeals from a determination of .the Appellate Term reversing-a judgment of the Municipal Court in favor of .the defendant. , '.

The plaintiff was a customer of ■ the defendant. On October 27, 1905, having eight checks to deposit aggregating $221.30., he presented the checks'to the defendant’s receiving teller, together with a deposit slip and a bank book.. The bank book was plaintiff’s own, but the deposit slip was headed with the name of one S. Hammer-man, who was also a customer of the bank. The receiving teller, following the usual custom, "entered the aggregate of the deposit in the bank book and handed it back to plaintiff. He put the checks into a drawer used for that purpose and placed the deposit slip on a file. Later in the day the amount of the deposit was entered in the customers’ ledger from the deposit slip, and, of course, since the slip bore Hammerman’s name the amount of the deposit was credited to him. Some time later, when defendant sent plaintiff a statement of his account, the error was discovered. The plaintiff now sues to recover the amount. We are not referred to any case similar to this in its facts or controlling as matter of principle. All the cases cited are readily distinguishable. It seems to be. clear that the bank book does not constitute the account between the plaintiff and the bank. It contains merely a number of receipts, or entries amounting to receipts, of moneys paid into the bank by the customer. But the mere fact that a customer pays money into a bank does not necessarily create the relation of debtor and creditor between the payee and the bank, for it is quite a common thing for one to pay money into a bank to the credit of another. Unexplained, the fact that a bank book contained an entry showing that-the holder of the book had paid money into a bank would presumptively, show that the bank had become the depositor’s debtor to the extent .of the deposit. But the bank book being merely a receipt or a series of receipts is open to explanation, and it would be competent to show that, notwithstanding the apparent creation of the relation of debtor and creditor, the payment was made under such circumstances that that relation did not arise. This would be shown by proof that at. the-time of paying in the money the depositor directed that the amount should be placed, not to his own credit, but to that of some one else. This, as we consider, was the effect of handing in with the deposit and leaving with the bank a deposit slip indicating that the deposit had been made by or for account of another person than the one who actually paid it in. The deposit slip bearing Hammerman’s name and reciting that he was the depositor amounted to a direction to the bank to credit the amount to Hammerman. We think, therefore,-that as to this deposit the relation of debtor and creditor was never created between plaintiff and the defendant bank. Of course, the plaintiff cannot recover on the theory that the defendant was guilty of negligence, for the first act of negligence, and that which led to the error, was committed by plaintiff himself.

It follows that the determination of the Appellate Term must be reversed and the judgment of the Municipal Court affirmed, with costs to appellant in this court and the Appellate Term.

Ingraham, McLaughlin, Laughlin and Houghton, JJ., • concurred.

Determination reversed and judgment of Municipal Court affirmed, with costs to appellant in this court and Appellate Term.  