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Horse, Banks & Banking, $ 620, p. 1030; Mr. Frank W. Etheridge, for appellee: Cosgrove v. Provident Inst. for Savings, 64 If, by by-laws or stipulations with deN. J. L. 653, 46 Atl. 617; Smith v. Brook-positors, an incorporated savings bank can lun Sar. Bank, 101 N. Y. 63, 54 Am. Dec. discharge itself from the legal responsibility 653, 4 N. E. 123; Hayden v. Brooklyn Sav. of its public employment and the duties it Bank, 15 Abb. Pr. N. S. 297; Burrill v. was created to perform, it is to be presumed Dollar Sav. Bank, 92 Pa. 134, 37 Am. Rep. that the by-laws and stipulations made by 669; Allen v. Williamsburgh Sav. Bank, 69 the bank were not designed thus to defeat N. Y. 314; Israel v. Bowery Sav. Bank, 9 the intention with which the legislature Daly, 507; Mitchell v. Home Sav. Bank, 38 passed the act of incorporation, and such Hun, 257; Hales v. Scamen’s Bank for Sav-by-laws and stipulations do not relieve the ings, 28 App. Div. 407, 51 N. Y. Supp. 140; bank from the duty of exercising reasonGifford v. Rutland Sav. Bank, 63 Vt. 113, 11 able care. L. R. A. 749, 25 Am. St. Rep. 744, 21 Atl. Kimball v. Norton, 59 N. H. 1, 47 Am. 340; Heath v. Portsmouth Sav. Bank, 46 Rep. 173. N. H. 78, 88 Am. Dec. 194; Sullivan v. Lew- A payment to the wrong person upon preiston Inst. of Savings, 56 Me. 507, 96 Am. sentment of a deposit book, if it is presentDec. 500; Appleby v. Erie County Sav. ed under such circumstances or in such a Bank, 62 N. Y. 12; Reinstein v. Watts, 84 manner as would tend to excite suspicion, Me. 139, 24 Atl. 719; Wall v. Provident or put a man of ordinary prudence upon inInst. for Savings, 3 Allen, 96; First Nat. quiry, will not exonerate the bank, even Bank v. First Nat. Bank, 151 Mass. 283, 21 where there is a by-law of the bank ( asAm. St. Rep. 450, 24 N. E. 44; Gloucester sented to by the depositor, authorizing such Bank v. Salem Bank, 17 Mass. 33; First payment. Vat. Bank v. First Nat. Bank, 4 Ind. App. Sullivan v. Lewiston Inst. of Savings, 56 355, 51 Am. St. Rep. 221, 30 N. E. 808; 2 Me. 507, 96 Am. Dec. 502; Gifford v. RutAm. & Eng. Enc. Law, p. 110.

land Sav. Bank, 63 Vt. 108, 11 L. R. A. 794, the bank and the signature to the forged with | inquiry,—the question was considered to be drawal slip on which the payment was made ; one for the jury. Tvid. and, also, there was no evidence that there had It is error to refuse to allow the jury to pass been any comparison made between them at upon the question whether the bank was guilty the time of the payment,--there was sufficient of negligence in making a payment to one preevidence to go to the jury on the question senting a pass book, when an officer of the bank whether ordinary care had been used by the admitted, in his testimony, that, after making bank. Tobin v. Manhattan Sav. Inst. 6 Misc. a comparison of the signature of the depositor 110, 26 N. Y. Supp. 14, Affirming 3 Misc. 628, in the signature book and the forged draft 23 N. Y. Supp. 1165.

check upon which the payment was made, he In Kummel v. Germania Sav. Bank, 127 N. Y. could readily distinguish the forgery; and that, 488, 13 L. R. A. 786, 28 N. E. 398, the rule pro- when the fraudulent claimant presented the vided that the bank would not be responsible book, he thinks ne did not ask him the questions for any fraud committed on the officers in set down opposite the name of the depositor in producing the pass book and drawing money the signature book; and that, on account of a without the knowledge or consent of the owner ; rush of business, if a signature presented was and when a payment was made to one present- a tolerably good one the bank officers paid ing the book and a receipt, and the applicant it without asking any questions: and this is was asked by the cashier where he lived, and error in spite of a by-iaw by which the "bank gave different answers, but was not asked any will not be responsible for frauds committed on further questions, and then paid the the oflicers by producing the pass book and money,---it was held that the question of the drawing money without the knowledge or conbank's regligence was clearly for the jury, since sent of the owner.” Saling v. German Sav. it affirmatively appeared that the cashier did | Bank, 15 Daly, 386, 7 N. Y. Supp. 642. not avail himself of the means at hand to So the court refused to disturb a finding of identify the person presenting the pass book negligence in a savings-bank officer making a and the forged receipt.

payment to a person presenting the pass book In a case, however, where the clerk making with a forged check signed with the name of the payment “judged from the first that the the depositor, when, being doubtful of the signature to the receipt was not exactly right," | genuineness of the signature after comparing asked the person presenting it if he could not it with the signature upon the signature book, write a more fluent hand, receiving from the he required the person presenting it to indorse applicant the explanation that he was not feel- the depositor's name upon the check, and paid ing well, and then put to him questions ap- it without further inquiry; the bank should pearing upon the signature book, which were have taken steps to test the identity of the incorrectly answered, it was held that the ques- dividual, in compelling him to produce some tion was involved in more doubt; but that, evidence other person to identify him. since the signature was such as to lead the Hager V. Buffalo Sav. Bank, 10 Misc. 455, 31 clerk, an interested witness, to judge that it N. Y. Supp. 448. was not right; and since the two signatures

verdict for the plaintiff, in action were before the court and jury for comparison, against a savings bank for the amount of a upon which the variance might have been so deposit paid to a stranger presenting the book, great as, of itself, to put a prudent person on will not be disturbed where the depositor could




25 Am. St. Rep. 744, 21 Atl. 340; Ladd v. Bankers are presumed to know the signaAugista Sav. Bank, 96 Me. 516, 58 L. R. A. tures of their depositors. 288, 52 Atl. 1012; Allen v. Williamsburgh Weisser v. Denison, 10 N. Y. 68, 61 Am. Sav. Bank, 69 N. Y. 314.

Dec. 733; Hardy v. Chesapeake Bank, 51 Even if plaintiff was negligent, her neg. Md. 562, 34 Am. Rep. 325; National Park ligence did not excuse the bank officers from Bank v. Ninth Nat. Bank, 46 N. Y. 77, 7 the exercise of reasonable care in the adop- Am. Dec. 310; Allen v. Williamsburgh Sav. tion of suitable means of preventing such Bank, 69 N. Y. 314; Frank v. Chemical Nat. mistake, and in making payments to wrong Bank, 84 N. Y. 209, 38 Am. Rep. 501.

The rights of the parties are founded uppersons.

Ladd v. Augusta Sav. Bank, 96 Me. 512, on contract, and the questions of contribu58 L. R. A. 288, 52 Atl. 1012; Brown v.

tory negligence and estoppel are not properMerrimack River Sav. Bank, 67 N. H. 549,

ly in the case.

Brown v. Merrimack River Sav. Bank, 67 68 Am. St. Rep. 700, 39 Atl. 336; Geitel

N. H. 549, 68 Am. St. Rep. 700, 39 Atl. 336. sohn v. Citizens' Sav. Bank, 17 Misc. 574, 40 N. Y. Supp. 662; Ladd v. Androscoggin faith and reasonable care, and, failing in

The measure of the bank's duty is good County Sav. Bank, 96 Me. 520, 52 Atl. 1016; this, it still continues liable to the deposiPeople's Sav. Bank v. Cupps, 91 Pa. 315.

tor, where it has made payment to the A party setting up an estoppel must show

wrong person, notwithstanding such person that he exercised good faith and diligence presented the book at such time. in endeavoring to ascertain the truth.

Sullivan v. Lewiston Inst. of Savings, 56 Morgan v. Farrel, 58 Conn. 427, 18 Am. Me. 507, 96 Am. Dec. 500; Ladd v. Augusta St. Rep. 282, 20 Atl. 614; Bigelow, Estop. sav. Bank, 96 Me. 510, 58 L. R. A. 288, 52 pel, 480; Moore v. Bowman, 47 N. H. 499; Atl

. 1012; Kimball v. Norton, 59 N. H. 1, Odlin v. Gove, 41 N. H. 465, 77 Am. Dec. 47 Am. Rep. 171; Brown v. Merrimack Riv773.

er Sav. Bank, 67 N. H. 549, 68 Am. St. Rep.

merely make his mark, and the person paid Where the app presented the boo and, made a mark which was observed by the bank's pretending to be the depositor, wrote a check officers to be different from the mark made by for the amount, which was carefully compared the depositor in the signature book, whereupon by the teller with the signature of the deposithe stranger returned with another man who tor in the book kept for that purpose, and the identified him as a depositor, but not as the payment was then made, it was held in the depositor in question, and the bank made no leading New York case that a nonsuit after further effort to ascertain the truth of the the refusal to allow the plaintiff to go to the statements made, although the place of busi-jury on the question whether the alleged failness of the depositor was around the corner ure to discover any dischepancy between the from the bank. Rosen v. State Bank, 32 Misc. genuine signature and the disputed one was neg. 231, 65 N. Y. Supp. 666.

ligence was not error. If, however, the two sig. And where there were circumstances calcu-natures were so dissimilar that when they were lated to raise suspicions of the identity of the compared the discrepancy would be easily disapplicant, the marked difference between the covered by a person competent for the position signature of the depositor and of the applicant of teller, then the failure to discover it would arresting the attention of the bank's officials, be evidence of negligence which should have been who required him to identify himself, which passed upon by the jury; but it would not be he attempted to do, these facts were ample to evidence of negligence if the difference was not sustain a finding of negligence in the bank's marked and apparent, or if it would require officers. Wegner v. Second Ward Sav. Bank, a critical examination to detect it, and espe76 Wis. 242, 4+ N. W. 1096.

cially if the discrepancy was one as to which But it has been held, in so many words, that competent persons might easily differ in opinion. the proposition that a mere difference in the But, nevertbeless, the bank will not be dissignatures requires a submission of the case to charged by a payment upon the production of the jury on the question of the negligence of the the pass book, irrespective of the exercise of bank's officers is not sound. Ferguson v. Har ordinary care and diligence upon the part of lem Sav. Lank, 43 Misc. 10, 86 N. Y. Supp. 825. the teller in discovering the dissimilarity

Accordingly, under the usual by-law regu in the signatures and instituting further inlation that the bank would endeavor to prevent quiry. Appleby v. Erie County Sav. Bank, 62 fraud, but that payments to persons producing N. Y. 12. the pass book should be valid payments to dis And where the defendant's officer testified charge the bank, where it was proved by an that he compared the signature of the draft officer of the bank, and uncontradicted, that ticket presented with the pass book, and then a few irregularities in the signature to the asked the person presenting it his name, where draft aroused his suspicion, that he then asked he was born, in what ship he came to this all tbe test questions required for identification, country, and his mother's maiden name, all of and that the fraudulent claimant correctly an which he answered correctly according to the swered all of them, whereupon the payment was signature book, and the officer then paid the made, the bank had a right to rely upon the ap amount demanded, upon the strength of the pearances thus presented ; and hence a verdict comparison and these answers, the majority of should have been directed for the defendant the court held that this evidence, not being rebank. Ibid.

butted or contradicted in any way, presented no

700, 39 Atl. 336; Appleby v. Erie County | L. R. A. 288, 52 Atl. 1012; Sullivan v. LewSav. Bank, 62 N. Y. 12; Allen v. Williams-iston Inst. of Savings, 56 Me. 507, 96 Am. burgh Sav. Bank, 69 N. Y. 314; Gearns v. Dec. 500; Allen v. Williamsburgh Sav. Bowery Sav. Bank, 135 N. Y. 557, 32 N. E. Bank, 69 N. Y. 314. 249; Tobin v. Manhattan Sav. Inst. 6 Misc. A bank neglecting to obtain the signature 110, 26 N. Y. Supp. 14.

of a customer is presumed to be familiar Whenever the depositor is able to write, with his signature. no bank can claim to be in the exercise of Weisser v. Denison, 10 N. Y. 68, 61 Am. reasonable care unless, before payment, it Dec. 731. makes comparisons of signatures.

It makes unlawful payment at its peril. Handwriting is, and has been for ages, Tobin v. Manhattan Sav. Inst. 6 lisc. the test of identity.

110, 26 N. Y. Supp. 14. Allen v. Williamsburg Sav. Bank, 69 N. Y. 314; Boone v. Citizens' Sav. Bank, 84 N. Hall, J., delivered the opinior of the Y. 83, 38 Am. Rep. 498; Smith v. Brooklyn court: Sav. Bank, 101 N. Y. 63, 54 Am. Dec. 653, From April 1, 1887, to September 26, 4 N. E. 123; Kummel v. Germania Sav. 1900, the plaintiff

' made in person 25 deposBank, 127 N. Y. 488, 13 L. R. A. 786, 28 N. its in the defendant's savings bank, which, E. 398.

with dividends added at the rate declared by Rules do not dispense with the exercise the bank, amounted at the time of the triof ordinary care on the part of the officers al, in March, 1904, to $3,230. The plainof the bank.

tiff has neither herself withdrawn any part A ppleby v. Erie County Sav. Bank, 62 N. of said sum, nor has she given any order Y. 17; Kummel v. Germania Sav. Bank, 127 for any payment to others. Upon four ocN. Y. 491, 13 L. R. A. 786, 28 N. E. 398; casions between December 31, 1901, and Israel v. Bowery Sav. Bank, 9 Daly, 507; March 3, 1902, the plaintiff's daughter Mrs. Ladd v. Augusta Sav. Bank, 96 Me. 510, 58 Keith, who, with her husband, lived with

question of fact for the jury, but only one of swering the description, and the questions were law for the court, on the issue of the negli- put to him satisfactorily, and his signature gence of the bank in making the payment. was thought by the bank's representative to Wall V. Emigrant Industrial Sav. Bank, 64 correspond sufficiently to that of the deposiHun, 249, 19 N. Y. Supp. 194.

tor. Ibid. And, going still further, it is held that there In Gifford v. Rutland Sav. Bank, 63 Vt. 108. is no evidence on which to go to the jury on 11 L. R. A. 794, 25 Am. St. Rep. 744, 21 Atl. the question of negligence in the savings-bank 340, the majority of the court held that, where officers, where the usual test questions are put a bank had not been notified of the loss of the to the person presenting the pass book and book, and the depositor was not personally draft, and are all answered correctly, except known to any oflicer of the bank, not having that the occupation of the depositor is given i been present when the deposit was made, and as “stone mason" when it was originally given the applicant was also unknown to them, but as “stone cutter" (but here there is no mention came with the book apparently lawfully in his in the report of a physical comparison of the possession, and on inquiry answered correctly signature of the draft with that in the signa- that the money was originally sent for deposit ture book), when it appears that the genuine by letter, that being a fact not likely to come to depositor had made six separate deposits after

the knowledge of persons not having to do the alleged fraudulent draft, which was shown

with and interested in the deposit, and although in the pass book at all those times. Ferguson

he wrote awkwardly the middle initial of the v. Harlem Sav. Bank, 92 N. Y. Supp. 261. Where a deposit was made in the name of

depositor's name, and comment was made upon another person

it by the bank officer making the payment, the than the depositor, and the person presenting the book, after the death of

bank was not bound to require the thief to the depositor, was questioned as to various

identify himself further than he did by promatters apparently identifying him, answered ducing the book, there being no circumstances the description of the depositor, and made a

which the court considered suspicious. signature which was compared by the official

Where the evidence as to the diligence used representing the bank with the genuine signa by the bank teller to identify the person preture of the depositor on file, and was thought senting the book was not very definite or posby hiin to resemble it sufficiently; and the find itive, but he admitted that be testified rather ing of a referee was that the official had used from his usual way of transacting such busireasonable and ordinary care and diligence in ness than from recollection of what inquiries making the payment,—the latter was entitled he made, and there were proved the presentato the protection given to such a payment by tion of the book, the presence of the husband the bank's by-laws. People v. Third Ave. Sav. of the depositor, and his assent to the pay. Bank, 98 N. Y. 661.

ment, circumstances of suspicion being It was also held that when the deposit was shown to be apparent, the signing of the made with false descriptions of the depositor's initials of the depositor, and a memorandum name, occupation, and age, his administrators made by the teller at the time showing that he were properly defeated, where the bank official "tested" the validity of the claim,-it was held acted in good faith, and with ordinary care and that the evidence, on the whole, would sustain diligence, in making the payment to one an a finding of a referee that the teller made the


the plaintiff, obtained money from the bank, , bookkeeper, a forged letter of that date, amounting in all to $500, by presenting the purporting to have been signed by the plainplaintiff's bank book, of which she had tiff, addressed to the treasurer of the bank, fraudulently obtained the possession, and by representing that the plaintiff had accident. presenting with the bank book forged orders ally destroyed her bank book, and requestpurporting to have been signed by the plain- ing that a new one be issued in its place, tiff, directing payment to be made to Mrs. and further stating that the plaintiff was Keith of the sums named in the orders an invalid, and had sent her daughter Mrs. Early in April, 1902, Mrs. Keith confessed Keith to get the new book, and had into her mother that she had drawn money closed an order for money. Mr. Merriman upon the bank book, but claimed that she informed Mrs. Keith that a new book could could obtain no more without an order from not be issued until a bond had been given the plaintiff, and offered to write to the to the bank, and prepared and gave to Mrs. bank and secure a reply which would sat- Keith a form of a bond, with instructions isfy the plaintiff, and a few days later read to have it executed by the plaintiff and to her mother what purported to be a letter some responsible person as surety. On the from the bank to the effect that no further following day Mrs. Keith presented the money could be drawn on the plaintiff's ac bond to Mr. Merriman at the bank, with the count without an order from the plaintiff, plaintiff's name as principal, and the name and that it would be all right. Thereafter of another person as surety signed thereto. the plaintiff kept her bank book locked up Both signatures were forgeries. In the abin a more secure place, but did not then sence of the treasurer of the bank, and withnotify the bank that her daughter had thus out inquiring as to the responsibility or wrongfully obtained possession of the bank existence of the person whose name appeared book and drawn the money. On the 16th as surety on the bond, and without submitof April, 1902, Mrs. Keith presented at the ting the matter to the “board of direction,” bank to Mr. Merriman, the defendant's or to “a committee appointed for that purpayment after "due inquiry." Hayden V. payment to the depositor or his order, payment Brooklyn Sav. Bank, 15 Abb. Pr. N. S. 297. upon a forged order was not good payment,

For a case denying the responsibility of the since a forged authority is no authority at all. bank for payment to an applicant who sent the Eaves v. People's Sav. Bank, 27 Conn. 229, 71 book with a forged order through the mail, the Am. Dec. 59. decision being based upon a strong by-law, with Similarly, where the by-law involved was, out special regard to the degree of care re "as the officers of this institution may be un. quired of the bank, see supru, II.,-Burrill v. able to identify every depositor transacting Dollar Sav. Bank, 92 Pa. 134, 37 Am. Rep. 669. business at the bank, the institution will not

be responsible for loss sustained where the ded. Payment upon forged orders alone.

positors have not given notice that their books In considering the question of what degree have been stolen or lost," it was held (followof care must be exercised by the bank in cases ing Kimins v. Boston Five Cents Sav. Bank, where the pass book is presented by one who 141 Mass. 33, 55 Am. Rep. 441, 6 N. E. 242) does not pretend to be the depositor, with a that this exonerated the bank for payment to forged order purporting to be executed by the one who falsely impersonated the depositor, but latter, the inquirer is met by the difficulty pre not for payment to one who falsely claimed to sented by the construction of by-laws govern aet under authority from the depositor; and ing the transaction and intended to limit the hence payment to one presenting the book with Tiability of the bank for payment to fraudulent a forged order purporting to be signed by the claimants, which by-laws frequently make no depositor was not excused. Kingsley v. Whitprovision for irresponsibility in case of pay man Sav. Bank, 182 Mass. 252, 94 Am. St. Rep. meut to a fraudulent claimant whose fraud 650, 65 N. E. 161. consists simply in the production of a forged

But where one of the rules of the bank was order purporting to be signed by the depositor, to the effect that, "as the officers of the inand not in pretending to be the depositor himself. stitution may be unable to identify every de

Thus, where the bank had no by-law limiting positor, the corporation will not be responsiits liability in case a depositor's bank book ble for loss sustained, where a depositor has should be lost or stolen, and the bank, without not given notice of his book being stolen or notice of such loss, made a payment to a per- lost, if such book be paid in whole or in part sou who falsely impersonated the depositor and on presentment;" and "in all cases a payment presented the book, and did pay out the account upon presentment of a deposit book shall be a upon a forged order, no question of negligence discharge to the corporation for the amount so either of the depositor or of the bank officials paid ;" and the fraudulent claimant presented was involved, and the liability of the bank not only the deposit book, but also a forged rested solely on the contract found in the bank's order purporting to be signed by the depositor reguiations providing that “money deposited it was held that the argument that the by-law may be withdrawn, in whoie or in part, by the was intended solely to protect the bank against depositor, or by any other person duly author the risk of mistake as to the personal identity ized, at any tiine without notice." Ladd v. of its depositors, and therefore that it did not Androscoggiu County Sav. Bank, 96 Me. 520, 52 apply to a case where there was no mistake as Atl. 1016.

to identity, but the payment was made upon a Where the bank's rule provided only for 'forged order purporting to be signed by the

pose,” Mr. Merriman issued and delivered plaintiff were genuine; and the plaintiff to Mrs. Keith new book, in the name of gave no notice to the defendant that Mrs. the plaintill, with the balance due upon the Keith had fraudulently obtained possession first book transferred thereto, and at the of the first book, and that said letter and same time paid to Mrs. Keith $300 upon a orders were forgeries, until November 1, forged order presented by her, dated April 1902. 16, 1902, purporting to have been signed by The following statement was printed in the plaintiff, and directing said sum to be the plaintiff's bank book: paid to Mrs. Keith upon the amount due "Take Care of This Book. If you lose upon the first book. Six payments, amount- it or mislay it give immediate notice to the ing to $1,700, were made by the bank to bank, as, if it gets into improper hands, Mrs. Keith upon presentation of said sec- you may be defrauded.” ond book with forged orders of the plain- Among the by-laws printed in plaintiff's tiff; the last payment having been made on book were these: the 27th of October, 1902. The plaintiff "Art. 13. Dividends and money withdrawn had no knowledge of the existence of said shall be paid only to the depositor, or to second book, nor of the payment of any of the depositor's order, or legal representthe money drawn by her daughter thereon, ative; but neither the principal nor interest until informed of these facts by the bank on of any deposit shall be paid to any person, the 1st of November, 1902, when she imme- unless the depositor's book of entries made diately obtained from her daughter the sec- by an officer of the corporation or of the ond book, and $20 of the money which she direction shall be presented that such payhad fraudulently drawn. Said second book ments may be entered therein, or unless the was issued and all the payments upon both depositor shall prove to the satisfaction of bank books were made, by the bank in good the board of direction, or a committee apfaith, and upon the belief that the letter and pointed for that purpose, that such book orders purporting, to have been signed by the has been lost or destroyed, in which case depositor, would be, perhaps, conclusive in fa- the only question for them to determine was ror of the depositor if it were not for the last whether the bank used its best efforts to secure clause, providing that the presentment of the the payment to the proper person. And, in book should be a discharge of the bank “in all a Girming a judgment for the plaintiff, the court cases.' In either case the purpose of the by- distinguished and limited Schoenwald v. Metrolaw was to authorize the bank to rely upon the politan Sav. Bank, 57 N. Y. 418, supra, in presentation of the book as its security against which, it was said, no special attention was fraud; and if the bank, using reasonable care, given to the clause in the rules to the effect and in good faith, paid the account upon pre- that the secretary would use his best efforts to sentation of the book, the bank was discharged. | prevent fraud. There the signature to the orLevy v. Franklin Sav. Bank, 117 Mass. 448. der used for the purpose of obtaining payment

Where the rules and by-laws provided that was very much like the signature of the deposi"the secretary will use his best efforts to pre- tor upon the signature book. From some statevent frauds; but all payments to persons pre- ments in the Schoenwald Case, however, the senting the deposit book shall be deemed good court sharply dissented,—for instance, that to and valid payments to depositors respectively," the effect that “a bank had a right to make when a payment was made to a man present- the payment on the simple production of the ing the book with an alleged forged order very pass book," the fact being that the depositor much like the signature made at the time of was a woman and the book was produced by a the deposit, by the depositor, who was a woman, man, which fact at once notified the bank that in the book kept for that purpose, it was held it was not the depositor who applied for the that, the rules allowing payment to anyone pro- payment; and in such a case it could not be ducing the pass book, no order for payment was that the bank officers should not be called to required, and the question of the genuineness the exercise of inquiry and care. The officers of the signature was wholly immaterial, and, of savings banks, acting under rules like those this question being the only one given to the under discussion, are bound to the exercise of jury on the trial, a new trial was necessary. care and diligence, up to the standard fixed for Schoenwald v. Metropolitan Sav, Bank, 57 N. the bank by those rules, and, the book being Y. 418, Reversing 1 Jones & S. 440. This de produced by a person of the opposite sex from cision, however, has been practically overruled the depositor's, it was then necessary to rely upon this point by Allen v. Williamsburgh Sav. upon an order from the depositor, and the bank Bank, 69 N. Y. 315, which, like the Schoenwald could no longer depend upon the rule that the Case, is treated and distinguished in KELLEY production of the pass book was enough to v. BUFFALO SAY. BAXK.

allow the payment. The case of Appleby v. The by-law provided, in that case, that "the Erie County Sav. Bank, 62 N. Y. 12, supra, was bank will use its best efforts to prevent fraud, also distinguished upon the ground that the debut all payments made to persons producing cision there, affirming the refusal of the trial the deposit books shall be deemed good and court to give to the jury the question of the valid payments to depositors respectively," and negligence of the bank, because the difference the depositor's wife fraudulently applied to between the two signatures was not marked the bank for the money, presenting the pass enough to the trial court to require it, was book and a check with the forged signature of grounded upon the reason that the appellate the depositor; and the jury were charged that court did not have the opportunity which the

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