#### Jacob Rosen, Respondent, *v.*The State Bank, Appellant.

(City Court of New York, General Term,

July, 1900.)

Savings bank — Negligent payment to a stranger who made a mark unlike the depositor’s.

Where a bank, doing business as a savings bank, and having a depositor, with a place of business in the neighborhood, who could only make his mark, pays the deposit to a stranger presenting the book, and the latter makes a mark different from that of the depositor and is merely identified by a third person as a depositor, and the bank makes no effort to ascertain for itself the truth of the situation, the question whether the bank has exercised proper care in making the payment is one for the jury and a verdict for the depositor will not be disturbed.

Appeal from a judgment of the City Court of the city of New York, entered upon verdict for the plaintiff, and from an order denying a motion for a new trial. The defendant did business as a savings bank. The person who received the money presented the bank book of the plaintiff.

Joseph I. Green, for appellant.

Carl L. Schurz, for respondent.

Conlan, J.

The action was brought by the plaintiff to recover the sum of $200, being the amount of a deposit held by the defendant to the credit of Jacob Rosen, the plaintiff, and which was paid out by the defendant to a person other than the one entitled.

The occurrences as detailed by the evidence adduced upon the trial were sufficient to put the defendant on its guard. It appears that on a certain day the plaintiff, who was an illiterate man, lost or mislaid his bank book, and immediately notified the bank of this loss, when he was informed by one of the officers of the bank that the deposit had been paid the previous day to a person who presented the book in question. The plaintiff at the time of opening his account, being unable to write, made a mark in the signature book kept by the bank, and, when the person who received the deposit from the bank on the day in question made a mark upon *232the cheek or memorandum, it was discovered by the defendant’s-officers that the same was not identical with that of the depositor on the signature book, and the person asking for the deposit was-made acquainted with this fact, and, as it appears, left the bank and returned later with a witness who, it is insisted, identified him as the person entitled to receive the money. The plaintiff’s witnesses, however, claim that this witness did not say that the person was Jacob Rosen, but that he simply stated he was a depositor;, whether or not this was sufficient to protect the bank was one of the questions submitted to the jury. Another circumstance appears, however, which, if acted upon by the defendant, would have in our opinion been a complete protection to the defendant and have prevented the occurrence. The place of business of the-depositor was given as 165 Hester street, New York city, while the bank was located on Grand street, near Norfolk street; the-distance between these two places is so short that it is strange the defendant did not at least make the effort of sending to 165 Hester street and ascertaining the real truth of the situation, but the defendant appears to have become satisfied, without making this-effort, or indeed any effort, to ascertain for itself whether the person applying for the deposit was the real party entitled. We-say again that the variance between the two marks, the one made at the time the account was opened and the other at the time of’ the attempt to close- the same, should have called for the exercise-of a sound judgment, and not have been permitted to rest upon accident, surmise or vague uncertainty. The defendant endeavors-to explain its action by saying that it is seldom that a person makes-two marks of a kind that are in any way similar in character, which is one way of admitting that some times, at least, this very circumstance may happen as it did in the case at bar. We do not think that the course of the bank, under all the circumstances, was-the exercise of such a degree of care and intelligence as it was. called upon to exercise.

An incident upon the trial is made the subject- of an exception presented for our consideration on this appeal. The defendant, claims it was prejudiced by the remarks of a juror made to counsel for the defendant. But upon an examination of what occurred,, as the same appears in the record before us, we do not think that the juror was disqualified or that the incident referred to had any effect upon the juror himself, or upon any of his associates, espe*233cially after the full disclaimer made to counsel, and upon all of the evidence of the case we are unwilling to say that the verdict reached was not in all respects right and proper. For these reasons judgment and order appealed from must be affirmed, with costs.

Hascall and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.