
    Joseph Schneider, Respondent, v. Union Dime Savings Bank, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Savings banks — regulations of — by-laws — difference in signatures — when bank liable for negligence in failing to detect that order was forgery.
    Despite a regulation of a savings bank contained in its by-laws that all payments made to a person presenting a deposit book should be deemed to be made to the depositor whether or not he gave that person authority to withdraw the money, the bank is bound to exercise ordinary care to safeguard the depositor from payments made to persons irregularly applying therefor, even though they present his pass-book.
    Where the difference between the signature to an order presented by one having a depositor’s pass-book and the original signature ’ card was such as to be apparent to a man experienced in comparing handwriting, the bank is liable for negligence in failing to detect that the order was a forgery.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff and from an order denying the defendant’s motion for a new trial.
    
      Woodford, Bovee & Butcher (James N. Luttrell, of counsel), for appellant.
    Lowther, Smith & Russell (James Wheatland Smith, of counsel), for respondent.
   Finch, J.

This is an action by a depositor to recover from a savings bank a balance alleged to be still held on deposit. It appears from the evidence that before the bringing of this action the bank had paid $500 to a person presenting plaintiff’s bank-book and an order forged in his name. The bank charged plaintiff’s account with this sum, and claims it should not be obliged to pay it again. The order on which payment was made was a forgery, and the only question which needs to be considered here is whether the bank was protected in making the payment.

The by-laws of the bank contain the usual regulation, which plaintiff was bound by, to the effect that all payments made to a person presenting a deposit book should be deemed to be made to the depositor, whether or not the latter gave that person authority to withdraw the money. The rule of law is well settled, however, that notwithstanding such a regulation the savings bank is bound to exercise ordinary care to safeguard its depositors from payments made to persons irregularly applying therefor, even though they present the depositor’s pass-book. Appleby v. Erie County Savings Bank, 60 N. Y. 12; Kummel v. Germania Savings Bank, 127 id. 488; Kelley v. Buffalo Savings Bank, 180 d. 171. The question to be decided in this case is whether the defendant’s employees exercised ordinary care in failing to detect the fact that the order on which the $500 was paid was a forgery.

The order itself and the original signature card which plaintiff signed on opening the account are before the court, and the difference between the two signatures is such as to be apparent to a man experienced in comparing handwriting. While there is a certain similarity in the form of the letters, it takes no expert to recognize the great difference in the fluency with which they were written. On even a casual observation, the genuine signature discloses some skill and speed in writing, while the forgery appears like the labored product of a hand unaccustomed to the pen. Certainly the dissimilarity is sufficient to be apparent so as to put on his guard a person competent to hold the position of paying teller in a savings bank.

Moreover, plaintiff’s expert, in addition to the reason quoted in the opinion of Mr. Justice Lehman holding that the signature to the order was a forgery, gave as reasons upon which the court was fully warranted in basing its judgment the following: " Then, when you take the standard signature, however, you find that the handwriting in the standards slants to the right of vertical, whereas the disputed signature is almost vertical; it is not quite vertical; but in the standards there is a decided slant to the right of vertical, and you find it is made with a fair degree of speed and without this patching process. There are a number of pen lifts in the genuine writings and the disputed signature has those pen lifts and has seven or eight additional pen lifts that we do not find in the genuine signatures.”

At the close of the'trial, both parties having moved for a direction of a verdict, the court granted plaintiff’s motion, and the judgment entered thereon should be affirmed, with costs.

Lehman, J.

(concurring in part). The plaintiff on November 3, 1913, presented to the bank his deposit book and a draft for $822.64.

The defendant refused to pay the draft, claiming that the plaintiff did not have that amount on deposit because on June sixteenth the bank had paid out $500 to some person presenting the plaintiff’s bank book and an order for the sum of $500 which purported to be signed by the plaintiff.

For the purposes of this appeal we must assume that the bank book was stolen from the plaintiff’s possession and plaintiff’s name signed to the order. It appears further that the by-laws of the bank contain a regulation that “ Depositors alone shall be responsible for the safe guarding of their books. And all payments made to persons producing the deposit books whether with or without an order or letter of attorney, purporting to be signed by the depositor, shall be deemed good and valid payment to depositors respectively and shall fully discharge the bank therefrom.” The plaintiff assented to this regulation and is bound thereby. In the case of the Appleby v. Erie County Savings Bank, 62 N. Y. 12, the court stated: It is necessary and proper that rules and regulations shall be prescribed for the payment of money deposited in savings banks, and for the protection of the banks in making payments, and if such rules are within the restrictions of the act, and are reasonable, they should be upheld. They constitute, if properly communicated and assented to by the depositor, the contract between the parties. But these rules do not dispense with the exercise of ordinary care on the part of the officers of the bank.”

This statement of the law has been frequently cited with approval and undoubtedly represents the established law of this state. It follows that since the defendant has made such a payment of $500 of plaintiff’s account as the plaintiff agreed should constitute a good and valid payment to him, the plaintiff cannot recover this amount from the hank if the hank has exercised due care in making the payment.

The paying teller of the bank is dead and consequently the bank is not in a position to produce testimony of the exact care used by him in making the payment. Obviously, however, wrong-doing or negligence is never presumed without some evidence. The evidence which the plaintiff claims established such negligence is the difference between the forged signature on the draft of $500 and the plaintiff’s signature on file with the bank. In Appleby v. Erie County Savings Bank, supra, the court said in considering a similar claim: If the two signatures were so

dissimilar as when compared the discrepancy would be easily and readily discovered by a person competent for the position, then the failure to discover it would be evidence of negligence which should have been passed upon by the jury. It would not be evidence of negligence if the difference was not marked and apparent, or if it would require an actual examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion. ’ ’ In this case there is no doubt but that the forged signature bears a very marked similarity to the true signature, in fact even at the trial the defendant produced several experts who testified that in their opinion it was a genuine signature.

The plaintiff’s expert conceded practically that an ordinary man would not be able to see the difference, but he thought that a bank teller was not an ordinary man ” and the line quality is so absolutely bad as to attract your attention at once but so far as outline is concerned it does resemble it.”

The mere fact that one expert differing with other experts testifies that the “ line quality ” or difference in slant ‘ ‘ should attract your attention at once ’ ’ does not in my opinion raise a real issue of negligence where upon inspection of the signatures themselves the dissimilarity in the signatures appears of such a character, that no negligence can reasonably be predicated upon it.

At the close of the case, both sides moved for the direction of a verdict and the learned trial justice directed a verdict for the plaintiff for the full amount. For the reasons given above I think that this direction was erroneous and that he should have directed a verdict only for the sum of $322.64 with interest.

Judgment should be reduced to that amount, and, as modified, affirmed, with costs to the appellant.  