
    Hugh T. McKenna, Respondent, v. Bowery Savings Bank, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Savings bank — action against, to recover money paid out by it upon presentation of pass-book — evidence — when motion to dismiss complaint should have been granted.
    Where, in an action against a savings bank to recover money paid out by it to a woman who presented the pass-book of plaintiff and drafts purporting to be signed by him, the signatures on which, though he. testified they were forgeries, bore a striking resemblance to his genuine signature then in possession of the bank and presented no such marked and apparent discrepancies as would, except to a handwriting expert, cause suspicion or lead an ordinarily prudent bank official to make further inquiry, a motion at the close of the evidence for the dismissal of the complaint should have been granted.
    Appeal by defendant from a judgment of the City Court of the city of New York in favor of the plaintiff.
    Cadwalader, Wickersham & Taft (Cornelius W. Wickersham and Walter S. Logan, of counsel), for appellant.
    John F. McIntyre (John F. McIntyre and David C. Hirsch, of counsel), for respondent.
   Guy, J.

Defendant appeals from a judgment entered on the verdict of a jury in favor of plaintiff in an action brought to recover moneys deposited by plaintiff .in the def endant savings bank, which the evidence showed had been paid out by defendant to a woman who presented plaintiff’s pass-book, and on drafts purporting to be signed by plaintiff, the signatures upon which drafts plaintiff testified were forgeries.

Plaintiff’s wife, from whom he has since separated and to whom the payments were made, appeared as a witness for the defendant, and testified that the signatures to the orders were, in each instance, genuine signatures of the plaintiff, and that the orders were given by plaintiff to her for the purpose of obtaining payment thereof. Evidence was introduced by plaintiff seriously discrediting her character and credibility as a witness. On the question of the genuineness of the signatures there is sufficient evidence to support the finding of the jury that they were forgeries. Assuming, however,- that the signatures were forgeries, the question is presented whether there was sufficient evidence of negligence on the part of the. defendant in paying moneys - on such orders, to a person other than the plaintiff, to justify the submission of the question of defendant’s negligence to the jury.

One of the rules of defendant savings bank, to which plaintiff subscribed upon becoming a depositor, provides that “All payments made to persons producing deposit books shall he deemed good and valid payments to depositors respectively.” It is well settled, however, that the existence of such a rule does not relieve the bank of the.duty of exercising reasonable diligence and prudence in the payment of money to persons other than the depositor, and that when facts and circumstances are brought to the knowledge. of the bank at the time payments are made, which are calculated to and ought to excite suspicion and inquiry of ordinarily careful and prudent bank officials, it is the duty of the bank to institute such inquiry. Gearns v. Bowery Savings Bank, 135 N. Y. 557. See, also, Kelly v. Buffalo Savings Bank, 88 App. Div. 375. The determination of this question necessarily involves an examination of the alleged forged signatures and comparison of them with the genuine signature of the plaintiff then in the possession of the defendant bank. I am of the opinion, after a careful examination and comparison of the various exhibits, that instead of presenting marked discrepancies, such as would arouse suspicion in the mind of an ordinarily prudent and careful bank official, there is so striking a resemblance between the alleged forged signatures and the admitted genuine signature of the plaintiff as would tend to satisfy an ordinarily prudent man that the alleged forged signatures were genuine, rather than arouse any suspicion as to their genuineness. Depositors in savings banks are frequently possessed of little skill in penmanship, and the evidence establishes that such differences as existed between the alleged fraudulent signatures in the various exhibits and the genuine signature, of the plaintiff are fewer and less marked than differences that ordinarily appear between admittedly genuine signatures among that class of depositors.

It is contended by the respondent that the mere fact that the pass-book was presented by a person of different sex from the depositor, who was described on the books of the bank as a single man at the time of opening the account, was sufficient to arouse suspicion in the mind of an ordinarily prudent man, and, in the „exercise of reasonable care and prudence, call for further investigation, and that in failing to make such further investigation the bank was guilty of negligence. It is evident, however, that further inquiry, based on the depositor’s previous statement that he was single, would but have resulted in the bank learning what is admitted to be the fact — that the person presenting the pass-book was the wife of the plaintiff, then living with plaintiff, and the ascertainment of that fact would have tended to remove suspicion rather than to create it. Payment to a person of different sex from the depositor upon the mere pressentation of the book, unaccompanied by a written order purporting to be signed by the depositor, or where the signature to the order, when compared with the genuine signature of the depositor in the possession of the bank, presents- such discrepancies as would excite suspicion or cause inquiry on the part of an ordinarily prudent bank official, has been held to be evidence of negligence and to present a question for the decision of a jury (see Allen v. Williamsburgh Savings Bank, 69 N. Y. 314, 319); but, in the case at bar, the presentation of the pass-book was accompanied by the presentation of an order purporting to bear the signature of .the depositor, which signature bore a striking resemblance to the genuine signature of the depositor then in the possession of the bank, and presented no such marked and apparent discrepancies as would, except perhaps in the hands of an expert in handwriting, cause suspicion or lead an ordinarily prudent bank official to make further inquiry. If there are no marked discrepancies, or if it would require a critical examination to detect them and even if the evidence was such that competent persons might honestly differ in opinion in connection therewith, then it is not sufficient evidence of negligence to create an issue for the jury.” Appleby v. Erie County Savings Bank, 62 N. Y. 12. A mere difference in the signature does not require the submission of the case to the jury. Ferguson v. Harlem Savings Bank, 43 Misc. Rep. 10; Israel v. Bowery Savings Bank, 9 Daly, 507. I am of the opinion, therefore, that plaintiff having failed to prove negligence on the part of the defendant, defendant’s motion to dismiss the complaint, made at the close of the case, should have been granted.

Bijur and Gavegan, JJ., concur.

The judgment must be reversed, with costs, and the complaint dismissed on the merits, with costs.  