
    S. Agnes Winter, Appellant, v. Williamsburgh Savings Bank, Respondent.
    
      Motion for the direction of a verdict—effect thereof as a waiver—savings bank deposit — withdrawal thereof on checks, purporting to be signed by the depositor, accompanied with the pass book.
    
    A motion for the direction of a verdict, made after the denial of the moving party’s motion to have certain questions submitted to the jury, operates as a waiver of the motion to submit.
    In an action brought by a depositor in a savings bank to recover an alleged balance of her deposit, it appeared that the portion of the deposit which the plaintiff sought to recover had been paid out by the bank upon orders purporting to be signed by the plaintiff, and presented to the bank with the deposit book at the time such payments were made.
    The plaintiff testified that shortly after she received the deposit book, one Smith, whom she afterwards married, called upon her, took the deposit book and walked out of the house with it, and two days afterwards told her that he had lost it. She gave no notice to the bank of these facts.
    One df the rules of the savings bank, printed in the deposit book, was as follows; “All payments made to persons producing the deposit book, whether with or without an order or letter of attorney, purporting to be signed by the depositor, shall be deemed good and valid payments to depositors respectively, and discharge the bank therefrom. Depositors alone are responsible for the safe keeping of their books, and the proper withdrawal of money. No withdrawal will be allowed without the book, and the book is the order of withdrawal.”
    Both parties requested the direction of a verdict and the court decided in favor of the defendant.
    
      Meld, that the judgment should be affirmed;
    That, in the view of the evidence most favorable to the defendant, there was nothing to put the bank upon such notice as would require it to exercise greater diligence than would have been required by its rule in cases where only the deposit book was produced.
    Appeal by the plaintiff, S. Agnes Winter, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of- the county of Kings on the 25th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.
    
      William 0. Miles for the appellant.
    
      G. 8. Mspensoheid, for the respondent.
   Goodrich, P. J.:

The plaintiff sues to recover an alleged balance of money deposited by her in the defendant bank. The defendant alleges that the money has all been paid to the plaintiff in accordance with the rules of the bank contained in the plaintiff’s deposit book. One of these rules-is as follows: “ All payments made to persons producing the deposit book, whether with or without an order or letter of attorney, purporting to be signed by the depositor, shall be deemed good and valid payments to depositors respectively, and discharge the bank therefrom. Depositors alone are responsible for the safe keeping of their books, and the proper withdrawal of money. No withdrawal will be allowed without the book, and the book is the order of withdrawal.”

The deposit book shows deposits and withdrawals as follows :

Dr. 1895, July 18.....................'. $795 00
19........................ 100 00
1896, Interest........................ 12 $895 12
Or. 1895. '
July 18, Two hundred D.................. . 200 00-
Aug. 3, One hundred D.......... 100 00:
Aug. 13, Two hundred D............ 200 00
Sep. 5, Two hundred D............ 200 00
Oct, 18, One hundred and fifty D.......... 150 00-
Dec. 3, Forty D........................ 40 00
1896.
June 29, Five 12-100 D.................., 5 12-
$895 12.

The plaintiff admits that she has been paid $35.5.12, i. e., $200 July eighteenth, $100 August third, and $5.12 June twenty-ninth, and $50 of the $150 order of October eighteenth. She sues for the. balance of $540.

At the close of the trial the defendant moved for the direction of a verdict in its favor. The plaintiff asked to go to the jury on all the facts in the case; on the question whether the bank and its-officials exercised due care in the discharge of their duties, etc., and this being denied, moved for the direction of a verdict in her favor-The latter motion was a waiver of her motion to submit, and consequently the court was authorized to find the facts, and if there was any evidence to sustain its findings, they were conclusive upon the parties. (Reynolds v. Miller, 79 Hun, 113; affd., 151 N. Y. 624, on the opinion below; Lazare v. Allen, 20 App. Div. 616.)

In Bowery Bank v. Gerety (153 N. Y. 411) it was said (p. 413): “ At the close of the trial both parties moved for the direction of a verdict, and the court made a direction in favor of the plaintiff. By the request of both parties at the trial, therefore, the court was clothed with full power to determine all the facts involved in the case. It must follow, as a necessary legal consequence from the practice adopted, that all facts and inferences necessary to support the judgment, and which could fairly have been derived from the proofs given, must be deemed to be found in favor of the plaintiff.”

The contract between the parties expressed in the rule above quoted justified the bank’s payment of the money to a person producing the deposit book without any depositor’s order for such payment. The plaintiff admitted that on July eighteenth she personally drew out $200. She testified that her next draft was for $50, on October eighteenth, and that this draft was raised to $150' by Smith, who was then her husband. She also admitted the draft of $100, on August third, for reasons not necessary to be stated.

She also testified that three days after she received the deposit-book Mr. Smith (whom she married three weeks afterward) called upon her, took the deposit book and walked out of the house with it; that two days afterward he told her that he had lost it. . She gave no notice to the bank of these facts. The fair deduction from her testimony is that she permitted Smith to take the book without, serious objection, and thereby put it in his power to present the same to the bank.

But inasmuch as orders signed, or purporting to be signed, by the plaintiff were produced to the bank with the book at the time the disputed payments were made, the question arises whether, taking the view of the evidence most favorable to.the defendant, there was anything in it or in the attendant circumstances to put the bank on ,such notice as to require it to exercise diligence other than such as would have been required by its rule in cases where only the deposit ■book was produced. We think not.

We find no reversible error and the judgment should be affirmed'

All concurred.

Judgment affirmed, with costs.  