
    Esther Abramowitz, Respondent, v. The Citizens’ Savings Bank, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    1. Savings banks — Action to recover deposit.
    An action to recover the balance of a deposit claimed to have been unlawfully paid to another person cannot be claimed to be prematurely brought where the refusal to pay was not placed on the ground that the bank was entitled to ninety days’ notice.
    2. Same — Negligence — Evidence.
    In such an action it is not incumbent upon the plaintiff to show any negligence on the part of the bank. . .
    3. Same.
    A savings bank is bound to exercise ordinary care and diligence to protect its depositors from fraud and larceny, although its by-laws' provide that payments to persons producing the pass-book shall be valid to discharge it.
    Appeal from a judgment entered o-n a verdict in favor of the plaintiff and from an order denying a motion for a new trial.
    John Alexander Beall, for appellant.
    Robert Goeller, for respondent.
   O’Dwyer, J.

This action was brought to recover a balance of a sum of money deposited by the plaintiff with the defendant, for which the defendant issued its pass-book.

The defenses as urged on the trial were:

“ (1) That the defendant paid out the money to a person having possession of the pass-hook, and that the defendant used all proper care and diligence, and exercised its best efforts to ascertain that the person to whom the payment was made was the, depositor;
(2) That the action was prematurely brought.”

There is no merit to the second defense. When the plaintiff . attempted to draw the money from the bank she was- met with its refusal of payment, not on. the ground that it was entitled to ninety days’ notice, but on the ground that the money had already , been paid to someone else.

The defendant could only have taken advantage of the rule requiring ninety days’ notice before withdrawing money by having refused to pay the money when demanded by the plaintiff on this specified ground.

When plaintiff rested she had made out a prima facie casé against the defendant, and the - motion to' dismiss was properly" denied. • . •

The evidence shows that she had deposited with the. defendant $222.25 and had drawn out $22.15, leaving a balance of about $200; that she demanded that sum from the defendant, and that, it refused to pay; that she never authorized anyone to draw the money from the bank,'and did not send anyone to the bank to draw any, and that she never gave a written order to the bank.

It was not incumbent on her to show , any negligence on the part óf the defendant. . •

It is provided-in the defendant’s by-laws that: “All deposit’s- 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.” And that, “ All payments to persons producing the ■ pass-book -issued by. the bank shall -be valid payments to discharge the bank.”

Notwithstanding these by-laws of the defendant it was bound to. exercise ordinary care and diligence in order that its depositors may be protected from fraud and larceny. Appleby v. Erie Co. Sav. Bank, 62 N. Y. 12; Allen v. Williamsburg Sav. Bank, 69 id. 317; Kummel v. Germania S. Bank, 127 id. 489.

The question as to> whether, under the circumstances disclosed by the evidence in this case, the defendant had exercised ordinary care and diligence was properly submitted to the jury. It cannot be said, as a matter of law, that the defendant exercised ordinary care and diligence in having so few test questions when the plaintiff could neither read nor write. No negligence was shown on the part of the plaintiff, and she testified in answer to her counsel: “ I never showed the book to anybody; the bank-book was lying .in a trunk; I went to work and did not tell them I had money.

“ Q. Was your trunk always locked? A. Yes, sir.

“ Q. Did your husband ever have the key? A, No.”

The only evidence in the case tending to show the amount of care taken by the defendant in paying out the money was that of the witness Sayler, the teller.of the defendant, who testified that he had asked the person who drew the money, when she told her age, whether she was married or single, her name, her husband’s name, and where she was born; and the answers given by her tallied with the answers given to these questions by plaintiff at the time when she became a depositor with- the defendant. .

On cross-examination he testified: “ I did not .'ask her whether or not she was a depositor; I simply asked her her. name, how much money she wanted.”

Under these circumstances it cannot be said that the jury were not justified in saying that "the defendant did not exercise reasonable care and diligence.

The judgment and order appealed from should be affirmed, with costs.

Conlan, J., concurs.

Judgment and order affirmed, with costs.  