
    (17 Misc. Rep. 57.)
    GEITELSOHN v. CITIZENS’ SAV. BANK.
    (City Court of New York,
    General Term.
    May 28, 1896.)
    Savings Banks—Paying Out Deposits—Identifying Depositor.
    Plaintiff deposited $1,310 in defendant’s savings bank, and at various times during the course of three years drew out $330 in small amounts. Afterwards some one stole plaintiff’s pass book, and drew out the balance in one sum. Defendant did not require the identification of the person presenting the book, or enforce the rule that previous notice must be given of the amount which a depositor might wish to draw out. Plaintiff could not read or write, and his attention was not called to defendant’s rules, printed in the pass book, that ail payments to persons producing the pass book should be valid payments to discharge the bank. Held, that defendant did not exercise ordinary care in paying out the balance of plaintiff’s money, and that plaintiff was entitled to recover.
    Appeal from trial term.
    Action by Louis Geitelsohn against the Citizens’ Savings Bank. There was a judgment in favor of plaintiff, and defendant appeals.
    Affirmed.
    Argued before SCHTJCHMAN and CODíLAIí, JJ.
    John W. Piersson, for appellant.
    D. M. Neuberger, for respondent.
   SCHUOHMAlSr, J.

The facts of this case are as follows:

The plaintiff, between August 21, 1886, and January 1, 1890, deposited in the bank of the defendants the sum of $1,259. On January 20, 1890, his deposit account, together with interest, stood at the sum of $1,310.84. The plaintiff withdrew from the said account the following sums:

■On March 30, 1887, the sum of.............................. $ 5 00

On March 28, 1888, the sum of.............................. 40 00

On September 15, 1888, the sum of.............................. 15 00

On September 28, 1888, the sum of............................... 60 00

On April 9, 1888, the sum of.............................. 30 00

On August 14, 1888, the sum of.............................. SO' 00

On November 11, 1889, the sum of.............................. 40 00

On November 18, 1889, the sum of.............................. 50 00

On January 7, 1890, the sum of.............................. 10 00

$ 330 00

On January 20, 1890, the sum of.............................. $ 980 84

Making in all the sum of.................................. $1,310 84

The plaintiff did not draw the said $980.84, but, presumably, one Feinsohn, who slept with plaintiff, in the same room, stole plaintiff’s bank book from a bureau drawer, which had been locked, and presented the bank book to the bank, and drew the money. The evidence further established that the said bank paid plaintiff the said sum of $330 in nine separate payments, in small amounts; that the last payment, of January 20, 1890, was made by the bank in the sum of $980.84, was made in one lump sum, and withdrew the whole deposit; that the bank did not require any identification of the person presenting the bank book and requesting the payment of the total deposit, nor did they require the enforcement of their rule, to wit:'

“No person shall have the right to withdraw any part of the amount that may be to his credit, unless he has given ninety days’ previous notice to the bank of the amount which he wishes to withdraw.”

■ Nor did they send to the plaintiff’s residence, at 101 Orchard street, ■about five blocks from the bank’s office. The plaintiff had not left any signature of his at the bank, he being unable to write, and he evidenced his signature at the bank by a mark.

There appears to be no disputed facts in this case, and therefore a question of law only is presented for the determination of the court. The defendants rely upon the three following rules, which are printed in the pass book, and which they claim constitute a contract between themselves and their depositors, which rules are printed in the English, French, and German languages. The rules are as follows:

“First. Every person, on becoming a depositor with this bank, shall hereby consent and agree to be governed by the by-laws, rules, and regulations of the bank. Second. All deposits and all withdrawals will be entered in a book given to the depositor on making his first deposit, which shall be the voucher of the depositor, and the evidence of his property in the institution, and the presentation of the book shall be sufficient authority to the bank to make any payment to the bearer thereof. Third. All payments to persons producing the pass book issued by the bank shall be valid payments to discharge the bank.”

But the plaintiff testified that he could not read nor write, and there was no evidence that his attention was called to the said rules by any one. There being no conflict of evidence or disputed facts in the case, it presents a question of law only, for the determination of the court. See Allen v. Bank, 69 N. Y. 314, 322. The rule of law is that when there is no conflict of evidence, and no disputed facts in the case, or the evidence in conflict is of such a nature that if it was submitted to a jury, and that jury found one way or another thereon, while it would be the duty of the court to set aside the verdict of the jury, as against the weight of evidence, then a question of law is presented to the court for its determination. See Hudson v. Railroad Co., 145 N. Y. 408, 412, 413, 40 N. E. 8. A savings bank is bound to exercise care and prudence in the execution of its trust, in the same degree that men of common prudence ordinarily exercise in their own alfairs. The rules prescribed by a savings bank for its protection in the payment of deposits do not dispense with the exercise of ordinary care upon the part of its officers. See Hun v. Cary, 87 N. Y. 71; Appleby v. Bank, 62 N. Y. 12; Gearns v. Bank, 135 N. Y. 557, 32 N. E. 249. From the undisputed facts in evidence in this case, and the inferences which I draw from those facts, it is my opinion that the defendants did not exercise the ordinary care in making the payment of $980.84, and that the trial judge could and should have directed a verdict for the plaintiff. Instead, however, he submitted the question of care to the jury, who found in favor of the plaintiff. This was favorable to defendants, because it gave them another chance of success. It certainly did not injure them. It follows that the defendants’ motion to dismiss the plaintiff’s complaint, and to direct a verdict for defendants, was properly denied. The charge of the trial judge was proper, and no exception had been taken to any part thereof. The allowance of the fourth, seventh, eighth, ninth, and tenth of plaintiff’s requests to charge, and the-refusal of the third, fourth, fifth, and sixth of defendants’ requests to charge, were proper. Furthermore, the defendants pleaded payment to the plaintiff. This was an affirmative defense, and the burden was on them to establish that defense by a preponderance of evidence.

No error having been committed in the trial of this case to the injury of the defendants, the judgment is affirmed, with costs.  