19 N.Y.S. 194 | N.Y. Sup. Ct. | 1892
In Kummel v. Bank, 127 N. Y. 492, 28 N. E. Rep. 398, it is said: “Assuming that the by-laws printed in the book are binding upon the depositor, and constitute a contract between the parties, we still think that the duty devolves upon the officers of the bank to exercise care and diligence in order that their depositors may be protected from fraud and larceny. ” In another form the rule is thus stated in Allen v. Bank, 69 N. Y. 319: “The officers of savings banks, acting under rules such as those shown to us in this case, are bound to the exercise of care and diligence, up to the mark which is fixed for the bank by those rules.” The extent of the duty which the savings bank is under will in some' degree be measured by the strictness or extent of the rule it has put upon itself. Ordinarily, it is bound to the exercise of reasonable care and diligence, which will be a question of law or of fact, as the proofs are conclusive and undisputed, or debatable and conflicting. Whether or not the defendant failed to comply with the duty devolving upon it, of exercising reasonable carp and diligence to protect its depositors from fraud or larceny, resort must be had to the evidence, to determine whether it was presented in such form as to make it a question o£ fact for the jury, or
Unless the force of this testimony is impaired, rebutted, or destroyed, we fail to see, upon such testimony, undisputed, how any inference could be •drawn by a jury that the defendant had violated the rule which required, in paying over money to one in possession of the pass book, the exercise of reasonable care and diligence. Hot only was it not impaired, but in many respects it was supported, by the testimony of the signature clerk of the defendant, who testified that he heard the teller asking the questions that were on the test book containing the signature and test questions. The plaintiff offered no testimony to contradict these witnesses, showing the conduct of the defendant’s employes at the time the money was paid; and, assuming such testimony to be true, no inference could be drawn therefrom that the bank was wanting in that degree of care and diligence which the law would exact to prevent fraud upon depositors. The only question which upon this testimony could remain for the jury would be the credibility of the witnesses, which was in no way assailed or impugned, or in any way affected, unless it is to be assumed that their relations as employes of the defendant, and the interest therefrom resulting, would subject their testimony to scrutiny and suspicion. There are cases holding that where a cause of action is supported by the testimony of a single witness, who is interested in the result thereof, and no evidence is presented to the contrary, the jury is not obliged to credit such testimony, or find a verdict thereon, but that the question of credibility of such witness is to be left to the jury, and a verdict against such witness will not for that reason be disturbed. Those cases, we take it, however, are cases where the burden of proof is upon the plaintiff to.establish a cause of action. Here, it is true, the manner in which the moneys were paid out raised a presumption in plaintiff’s favor, which shifted the affirmative of establishing its defenses upon the defendant; and the defendant having assumed the affirmative, and presented evidence tending to support its defense, which was in no way contradicted or impaired, a verdict, under such circumstances, for the plaintiff, would have been against the weight of evidence, and would necessarily have to be set aside. We do not regard the conclusion to be reached upon such evidence as either debatable or conflicting; and it therefore properly presented a question of law for the court, and justified the direction which ■was made.
A more difficult question presented on this appeal relates to the right of" the plaintiff to recover the balance of his deposit with the defendant, which' he is and was undoubtedly entitled to receive. It was conceded that, in addition to the $540 which had been fraudulently withdrawn, plaintiff had stilt to his credit with the defendant bank the sum of $141.08 and interest. Had the plaintiff requested a direction for this amount, it should have been granted.. In his complaint, he claimed the whole amount, and the demand alleged upon the defendant related to the whole amount; and the refusal to pay had-reference to the whole amount; the defendant, so far as the evidence shows, never having been requested to pay this sum of $141.08, which-still remained to the credit of the plaintiff. It is true that this amount was included in the entire amount demanded by the plaintiff, and the right to recover the entire amount was denied by the defendant. Plaintiff did not make any claim for this balance on the trial, although it was conceded that that amount stood to the credit of his account; and, at the end of the trial,, he asked to go to the jury upon “issues of fact denied.” The testimony showed that the only issue of fact denied was as to defendant’s liability fat the $540 which had been withdrawn by some third person from the defendant bank. There was no evidence that any demand had ever been made for this specific sum, but on the contrary the evidence was that the demand had been made for the entire amount which had been deposited-by plaintiff, which-included this, together with the $540 withdrawn. We do not agree with the-respondent, that, to have obtained this amount, it would have been necessary to produce the pass book, or that it would be unreasonable to require it to-take the risk of payment of this $141.08 without the presentation of the passbook; for the reason that, upon the facts appearing on the trial, it was evident that the pass book had been taken from the plaintiff’s possession, and its-absence could not be regarded as destroying the plaintiff’s right to the balance of the deposit. As held in Kummel v. Bank, supra, “the pass book of a savings -bank cannot be regarded as negotiable, and its possession does not constitute proof of a right to draw money thereon. The book imports a lia
Van Brunt, P. J., concurs.
This action was brought to recover the sum of $681.08, with interest, being the balance of moneys deposited by the plaintiff with the defendant. The answer set up several defenses: First. That at the time she plaintiff opened an account with the defendant he received a pass book, and that one of the conditions upon which the defendant received plaintiff’s deposit, and which was printed in the pass book, was as follows: “The pass book shall be the voucher of the depositor, and the possession of the pass book shall be sufficient authority to the bank to warrant any payment made and entered in it. The bank shall not be liable or called on to make any payment without the presenting of the pass book at its counter, that the proper entry may be made in it.” That, at the time the plaintiff demanded payment of the moneys sued for, he did not present the pass book. A second defense was that among the articles or conditions of the agreement made between the bank and the plaintiff at the time of the deposit and the acceptance thereof was the following: “Although the bank will endeavor to prevent fraud on its depositors, yet the payments to persons producing the pass books issued by the bank shall be valid payments to discharge the bank.” That on September 3, 1889, a person representing himself to be the plaintiff produced the pass book issued by the bank to the plaintiff, and the defendant, believing such party to be the plaintiff, paid him the sum of $540. The third defense was that when such party presented the pass book.the defendant, in order to fully discharge its duty to plaintiff, made various inquiries touching his identity, the answers to which satisfied the defendant that he was entitled to receive the money; that the answers so given were based upon information received from the plaintiff himself; and that the payment of the money was due to the negligence of the plaintiff in confiding to the person who obtained the $540 information which should not have been confided to a stranger.
Upon the trial the defendant claimed and was awarded the affirmative. The undisputed facts established by the testimony were as follows: The plaintiff made his first deposit with the defendant, and received a pass book, on January 10, 1878. The conditions or agreement upon which it is claimed the deposit was received, and the pass book issued, were printed in the inside of the cover of the pass book, and contained, among other things, the two paragraphs set up in the answer, and above quoted. At the time of such
We are of the opinion that the j udgment appealed' from must be reversed because of the denial of the application on behalf of plaintiff to go to the jury upon the question of the negligence of the officers of the defendant. Notwithstanding the notice printed on the inside of the cover of the pass book, that all payments to persons pinducing the pass books issued by the bank shall be valid payments to discharge the bank, nevertheless it is well settled ' that the defendant and its officers were bound to exercise ordinary or reasonable care in making payments, although the pass book was presented by the person to whom the payment was made. Appleby v. Bank., 62 N. Y. 12; Kummel v. Bank, 127 N. Y. 488, 28 N. E. Rep. 398. Although the testimony in the case at bar is not conflicting, still it was of such a character that
It was set up in the answer that the payment to the wrong person was caused partly by the negligence of the plaintiff in disclosing the answers to