
    Harry M. Sims, Ex’r, Resp’t, v. United States Trust Company of New York, Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Banks and banking—Verbal directions to agent making deposit —Duty op bank receiving deposit».
    The plaintiff’s testator delivered to one 0. his check on the People’s Bank, payable to the order of defendant, with verbal direction to deposit the same to his credit with defendant. Instead of so doing, 0. delivered it to defendant, but requested and received from it a certificate of deposit, payable to himself as trustee for Dr. Sims, and shortly thereafter drew the money and converted it to his own use. Held, that the language of the check, making the funds payable only upon the order cf the defendant, imposed upon defendant the duty of seeing- that they were not through its agency improperly disbursed after it had received them.
    2. Same—Evidence—-Power oe attorney—When not admissible.
    On the tr.al the defendant offered in evidence a power of attorney from Dr. Sims to 0. (dated twelve years previous), which, so far -as appeare i, had always remained in the custody of the People’s Bank and never came to the knowledge of defendant until after the transaction in question. Upon objection by plaintiff it was excluded by the court. Held, not to-be error.
    3. Power of attorney—Construction of. -
    A certain clause in the power imported a .general power to collect and receive all moneys due and to become due upon “rents, accounts, bonds and mortgages or otherwise.” Held, that the words “or otherwise” are limited in their meaning by the words preceding them, and refer to debts, and liabilities of a similar character and cannot he held to extend to the collection of moneys already. received and deposited in a solvent trust, company.
    4. Same—Custom—"When customers bound by.
    A custom of a trust company to require the signature of a customer to-accompany a deposit cannot affect its liability to the real owner for moneys actually received by it or the legal effect of a transaction by which it came into the-possession-of -another’s property.
    Appeal from a .judgment of the supreme court, general term, first department, affirming a judgment of the circuit court in favor of'plaintiff in an action to.recover a deposit of money.
    
      William A. 'W. Stewart, for appl’t;. J. Alfred Davenport and Edward-Q. Perkins, for resp’t.
    
      
       Affirming, 38 Hun., 639, mem.
      
    
   Rucee, Ch. J.

On the 15th of November; 1882, the-plaintiff’s testator, J. Marion Sims, .delivered to one Crow-ell his-check on the People’s Bank of the city of New York, payable to the order of the defendant for $5,000, with verbal directions’to deposit the same to his .credit with the-, defendant. -Instead- of doing as directed, Crowell delivered the check to the defendant, but requested and received from it a certificate of deposit payable to-himself as trustee for Dr. Sims, -and shortly thereafter drew the money thereon, and converted it to his own use. The defendant collected the money from the People’s Bank upon Dr. Sims’ check, and the main question in the case is, Whether it had authority to make the payment it did to Crowell?

It claims to :have acted in so doing upon the strength of an alleged custom .among hanks authorizing such a payment. Upon the trial, however, the -proof in -relation to-such custom was --conflicting, and the question as to its existence was submitted to the jury and found against the defendant’s claim.

Upon the transaction, with this feature eliminated, there would seem to be no doubt of the defendant’s -liability. The check, upon its face, imported the ownership of the-moneys represented in it by Dr. Sims, and Ms desire that its custody should be transferred from the People’s Bank to the .defendant. This certainly did not warrant the defendant in supposing that Dr. Sims thereby intended to pay $5,000 to Crowell, or place him, for any purpose, in possession of the fund. If he had so intended, the check would have been made payable to Crowell’s order, and there would have been no need of the agency of the defendant in the transaction. The use of the defendant’s name as payee of the check mdicated the drawer’s intention to lodge the moneys in its custody, and place them under its control, and notlring further than this was inferable from the language of the check. The check, by its terms, authorized the defendant to withdraw from the People’s Bank a certain sum, for a purpose not disclosed, but fairly inferable from the nature of the defendant’s business.

The defendant could have refused to receive the deposit, or act as Dr. Sims’ agent in transferring the funds from one custodian to another, but, havmg accepted the office of so doing, it was bound to keep Dr. Sims’ moneys until it received his directions to pay them out. The language of the check making the funds payable only upon the order of the defendant imposed upon it the duty of seeing that they were not, through its agency, improperly disbursed after it had received them. They could not safely pay out such funds except under the direction of their lawful owner. This they have never received, unless the proof hereafter referred to shows such authority.

On the trial the defendant offered in evidence a power of attorney from Dr. Sims to Crowell, which, so far as appears, had always remained in the custody of the People’s Bank, and never came to the knowledge of the defendant until after the transaction's in question. Tliis evidence was objected by the plaintiff, and excluded by the court, to wMch ruling the defendant excepted. TMs exception presents the principal question in the case. The power of attorney read as follows:

“Know all men by these presents, that I, J. Marion Sims, of the city of New York, have made, constituted, appointed, and by these presents do make, constitute, and appoint, Gilbert L. Crowell, of the same place, my true and lawful attorney, for me, and in my name, place and stead,, to collect and receive all sums of money now due, or hereafter to become due, to me, whether from rents, accounts, bonds, and mortgages, or otherwise, and, upon payment thereof, to give good and sufficient receipts or other dis1charges therefor. Also to transact all my ordinary bank business at the People’s Bank, in the city of New York, to draw checks on said bank, and to indorse checks, promissory notes, drafts, and bills of exchange for collection or deposit. This power of attorney to remain in forge until said bank is notified of its revocation, giving and granting unto my said attorney full power and authority to do ana perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of revocation; hereby ratifying and confirming all that my said attorney, or his substitute, shall lawfully do, or cause to be' done, by virtue hereof.”
“In witness whereof I have hereunto set my hand and seal on the fifth day of April, 1870.
“ J. MARION SIMS. [L. S.]
[50-cent internal revenue'stamp.]
“Sealed and delivered in the presence of Charles S. Busitnell.”

We are of the opinion that the exception was not well taken. At the time of this transaction Crowell made no claim of acting as the general agent of Sims, and the defendant had no reason to suppose that he was acting in such a capacity. It dealt with him solely upon the faith of the apparent authority inferable from his possession of the check, and, if it was mistaken in supposing that that fact gave him authority to dispose of the fund, there is no reason, in equity or justice, why it should not be held to the ■consequences of its error. Assuming, for the present, that the power of attorney gave Crowell authority in fact to withdraw the deposit from the defendant, yet the defendant did not rely upon or act on this authority. It is by no means certain, if the bank had required Crowell to show his authority to dispose of Dr. Sims’ money, an examination of the power would have led to a refusal to pay them out on a stale paper, antedating the transaction by upwards of twelve years, and couched, to say the least, in ambiguous language. Further inquiry would undoubtedly have led to a discovery of Crowell’s abuse of his employment, and the danger threatening the security of the fund intrusted to him to deposit. The loss of the moneys in question is directly traceable to the defendant’s act in paying Crowell upon an unwarranted assumption of his authority to receive them, and their neglect to investigate the extent of his power.

But, however this may be, we are of the opinion that the power did not in fact authorize Crowell to withdraw the ■deposit. The defendant is not even entitled to invoke the "benefit of the rule requiring the language of a written instrument to be construed not strictly against its maker, for it did not pay the money upon a consideration of its ¡provisions, ana it stands now upon the authority which the power in fact gave to Orowefi. If we regard the authority intended to be conveyed by the first paragraph of the power alone, it would hardly seem that it embraced within its ■ terms authority to withdraw deposits or change investments; but, when considered in the light of the rule restricting the meaning of general words by the signification of those associated with them, it seems such authority was still further removed from the intention of the parties. The clause itself imports a general power to collect and receive all moneys due, and to become due, upon “rents, accounts, bonds, and mortgages, or otherwise,” and evidently refers to such collections of moneys as would be within the ordinary duties of a collecting agent of a business man.

Under well settled rules, the words, “or otherwise,” are limited in their meaning by the words, “ rents, accounts, bonds and mortgages ” preceding them, and refer to debts and liabilities of a similar character, and cannot reasonably be held to extend to the collection of moneys already received and deposited in a solvent institution subject to the immediate disposition of the owner. To say that the removal of a deposit with a solvent trust company, under the claim that the agent was thereby engaged in the business of collecting his principal’s credits, would seem to be in violation of the clear meaning and intent of an authority to transact only collecting business. Familiar illustrations of the application of the rule of noscitur a sociis occur in Mangam v. City of Brooklyn (98 N. Y., 595), McGaffin v. City of Cohoes (74 id., 389), Corning v. McCullough (1 id., 47), and fully authorize the construction which we have given to this power.

When, however, this clause is considered in connection with the subsequent provisions of the power, all serious doubt of its meaning would seem to be removed. The last clause specially treats of the powers intended to be conferred upon the agent in dealing with banks in the name of his principal. If such duties had been supposed to be included in the first paragraph, then the last one has no office to perform.- If the authority “to collect and receive all sums of money now due, or hereafter to become due,” gave Crowell power to transfer and remove trust deposits, placed by way of investment or otherwise in banking institutions, certainly the speciál provision authorizing him to transact such business with the People’s Bank was unnecessary and useless. Its insertion indicates unmistakably the understanding of the parties that the authority was not supposed to be embraced in the first clause of the instrument, and was specially required to be inserted in order to enable him to transact any banking business. Well-settled rules of construction require us to give effect to every part of the instrument, and this can be done only by holding that the last clause was intended to embrace all of the authority designed to be conferred upon CroweH to deal with banks in Dr. Sims’ name. This view is also strengthened by the application of the rule requiring grants of power to be so-construed as to exclude the exercise of a power in any other form or manner than that specially authorized. The clause of the power conferring authority to transact business with the People’s Bank, and with that bank alone, impliedly prohibited such transaction with any other banking institution.

We, therefore, think that the - evidence in question was-properly excluded.

The circumstance that it was the custom of the trust company to require the signature of a customer to accompany a deposit was one adopted for the safety and protection of the bank, which they were at liberty to enforce or omit as it deemed best under the circumstances. It could not affect its liability to the real owner for moneys actually received by it, or the legal effect of a transaction by which it came into the possession of another’s property.

We think the evidence of ratification by Dr. Sims of the-act of Crowell in making the deposit in question as he did, was not sufficient to authorize the submission of-that question to the jury.

On the whole case we are of the opinion-that no error was committed on the trial, and that the judgment should be affirmed.

ATI concur, .except Raparlo, J., not voting.  