99 N.Y.S. 927 | N.Y. App. Div. | 1906
It is recognized that the rule of liability of a savings bank and that of a commercial bank is different where payment of the depositor’s money is made to the 'wrong person, for the reason that in the commercial bank the depositor ordinarily has frequent transactions and is more or less personally acquainted with the officials of the bank, while in a savings bank the depositor is usually not a business person, the transactions are not so frequent and there are so many depositors who visit the bank at such rare intervals that it is not to be supposed that its officials would have personal acquaintance with or knowledge of all its depositors. The one account is more or less active and for business people; the other account is more or less dormant and usually for people unacquainted with business. While in the case of the commercial bank the ordinary rules of commercial law apply,
In this .case the rules of the bank contain no provision except the broad one that a payment upon presentation of the book is good. The question then is, did the officers of the bank fail to exercise ordinary care for the protection of the plaintiff at the time these various payments were made? Did any fact appear which would call to the mind of the ordinarily prudent man a doubt or a suspicion that the transaction was not, an ordinary business transaction in the manner in which this book was presented ? The bank officials who paid the various checks swear that all the customs and rules of the bank were observed when these particular payments were made, but in most cases they admit that they have no definite recollection of the particular transactions, but are swearing from the method which was always pursued in such cases. Where the book is presented by a person other than the depositor, the officials look to the signature book to see in what manner the signature is written. That precaution was frequently observed in this case, and it was discovered that the signature was properly made by mark. If the book is presented and the receipt signed by a person other than the payee, then unless ttie payee or payee’s signature is known it is required that he be sufficiently identified. In this case the first two checks bearing Mrs. Haight’s name are conceded to be genuine, and the payments made upon them were entirely proper. When the third check was presented, reference was made to the signature book and to the former check signed by Mrs. Haight. She was then asked if she saw the plaintiff sign the check, and she replied that she did. This seemed to comply with the rules and the requirements and practices of the bank. This method was adopted in most of the cases, except in some cases the clerk swore that he compared Mrs. Haight’s signature with that upon which the bank had made payments, and found it the same; and as to some of the checks, the clerk swears that he knew Mrs. Haight from her prior dealings
But it is suggested that the fact that this account was practically dormant, that but two checks had been drawn upon it for about wenty-eight months, and then within the period following nine checks aggregating about $500 were drawn in six months, was enough to put the bank upon its inquiry. But all classes of persons malee deposits in savings^ banks, and the particular reason for which each person is saving up such moneys is not known to the bank, and the fact that after a period of time the money is drawn in a lump, or in different checks, does not seem to be so unusual or improbable a transaction as to charge the officers with negligence in making such payments. What could it have done in this case otherwise than it did do ? It is evident that when these checks were presented with the book, by the niece of the depositor whom the depositor had first brought into relation with the bank and in whose house she was then living, and who had been the witness on previous checks which were concededly genuine, it would have apparently been a violation of the duty of the bank, without any further information or suspicion than it had, to refuse to pay such checks. The bank cannot act unreasonably or capriciously in refusing to pay a customer’s check upon presentation of the book, and for an unreasonable refusal would be clearly liable to any damages which might result. The defendant’s rules provide that it may require proof or indemnity in case of doubt, and honest doubt can only justify refusal to pay when the book is presented. In considering the right of the
Upon a careful consideration of the evidence and all the attending circumstances I cannot see that this bank has failed to exercise ordinary care for the protection of the plaintiff, and I do not see any fact, as the situation then appeared to it, which would have justified it in refusing to make the payments. A refusal would have rested upon a mere guess and not upon a doubt, or upon the presence or absence of any fact which should have aroused a suspicion.
In addition to these suggestions, which show that the bank was not negligent, the jury have found that the Haights were not authorized in drawing all these moneys, and in respect to some of the larger payments the finding may be justified, but it is still quite evident that some of the former and smaller payments seem fairly to have been authorized by the plaintiff and the book intrusted to them. Mrs. Haight swears that the first of the nine cheeks was used in part to pay Dr. Wilson the balance of his bill after the plaintiff had discharged him. She admits his discharge and that she did not pay him, and the doctor swears he was paid his money. The plaintiff swears the first payment of fourteen dollars and tjvelve cents drawn by her from the bank, and when she was not living with Mrs. Haight, was drawn for the purpose of getting Mrs. Haight some
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.