#### Henry Saling, Respondent, *against*The German Savings Bank in the City of New York, Appellant.

(Decided December 2d, 1889.)

In an action against a savings bank for deposits therein, the bank set up, as a defense, payments to another on .presentation of plaintiff’s passbook and forged drafts. The testimony of the bank’s officers was to the effect that, from a comparison at the trial of the forged signatures, and the genuine signature on the bank’s books,the forgery was apparent, and that no questions of identification were asked of the person who presented the book in question, nor was a comparison of signatures made. *Held,*that it was error to refuse to allow the jury to pass upon the question of defendant’s negligence.

A by-law of a savings bank that the “bank will not be responsible for frauds committed on the officers by producing the pass-book and drawing money without the knowledge or consent of the owner,” does not discharge the bank from the obligation to exercise ordinary care as to the identity of persons presenting pass-books.

Appeal from a judgment of the General Term of the City Court of New York reversing a judgment of that court, entered on the verdict of a jury.

The facts are stated in the opinion.

*Lewis*Sanders, for appellant.

*David*Leventritt, for respondent.

Larremore ,Ch. J.

It is not necessary that we should state at any great length our reasons for affirming the order of the General Term of the City Court reversing the judgment rendered at Trial Term. The plaintiff was a depositor in the defendant’s bank. It appears that one Rudolph Schwartz (who has since been indicted and convicted for the offense) surreptitiously procured plaintiff’s bank-book, personated plaintiff at the bank, forged his signature on several occasions, *387and thereby collected various sums in plaintiff’s name, which the defendant has charged to plaintiff’s account. The payment of such sums to Schwartz the defendant interposed as a defense to this action.

■ The forged signatures were produced on the trial, and compared with the signature of plaintiff in the signature book of the bank, and with other genuine signatures; and the officer of the bank whose duty it was to examine the signatures upon draft checks admitted that, after making such comparison, he could readily distinguish such genuine signatures from the forgeries. This witness further says that, when the man Schwartz presented himself to draw money, he does not think he asked him (Schwartz) any of the questions, as to birthplace, age, etc., which facts are always set opposite a person’s name when he opens an account, for future identification; that the signature was such a good imitation that the witness did not think he could possibly be mistaken ; and that moreover he was frequently so busy that he did not have time to ask the questions. The witness further said that, on account of the rush of business, if a signature presented “ is a tolerably good signature, we have it paid without asking any questions.” With this evidence in the case it was error for the trial judge to refuse to allow the jury to pass upon the question whether or not the defendant was guilty of negligence in making the payments *(Fricke*v. *German Savings Bank,*4 N. Y. Supp. 627 ; *Cornell*v. *Emigrant Industrial Savings Bank,*9 N. Y. St. Rep’r, 72).

The defendant relies upon an ordinance or by-law to which plaintiff subscribed, to the effect that the “ bank will not be responsible for frauds committed on the officers by producing the pass-book and drawing money without the knowledge or consent of the owner.” In order to sustain the action of the trial judge in directing a verdict, it would have to be held that such by-law exonerates the officers of the bank from exercising ordinary care in the making of payments. In *Appleby*v. *Erie County Savings Bank*(62 N. Y. 12), the by-law involved was in terms much stronger than the one in question here. It is expressly provided that, “ although the bank will *388endeavor to prevent fraud upon its depositors, yet.all payments to persons producing the pass-books issued by the. bank" shall be valid payment to discharge the bank.” Even in that, case it was said in the opinion that “ these. rules do. not dispense with the exercise of ordinary care on the part of the officers of the bank ” (page 17). It would therefore, seem not to be the policy of the law to allow a savings bank to discharge itself from all obligation to exercise ordinary care, as to the identity of persons presenting pass-books.

In the case at bar, facts tending to show negligence in making the payments were adduced from defendant’s, own officers, and the issue of negligence should have been submitted to the jury.

The order of reversal should be affirmed.

J. F. Daly and Van Hoesen, JJ., concurred.

Judgment affirmed. .