Fox v. Onondaga County Savings Bank , 3 Silv. Sup. 397 ( 1889 )

Hardin, P. J.

Upon considering the propriety of a nonsuit the plaintiff is entitled to have the most favorable view taken of the evidence. She testifies positively that she did not withdraw the money from the bank, which is the subject of the controversy. What credit should be given to her as a witness was a question which ought to have been submitted to the jury. While there are many circumstances detailed by her in the course of her testimony in the direct and cross examination which call for close attention and careful scrutiny, and while the defendant has produced a witness who testifies that he believes the payments that were made by the bank were made to the plaintiff in person, yet the question as to whether the plaintiff in fact received the moneys from the defendant was one of the facts which ought to have been determined by the jury.

In Merritt v. Lyon, 3 Barb. 112, the court, in speaking of a witness who had testified upon an important subject, observed, viz.: “ Whether, under the circumstances, he was a credible witness or not, was solely a question for the ■consideration of the jury. A nonsuit cannot be granted on the assumption by the judge that the plaintiff’s witness is not to be believed.” We think the trial judge disregarded this principle, and the comments which we find he made in granting the motion are indicative that for the moment be became unmindful of the rule just quoted.

In the general statute in respect to powers, rights, and liabilities of savings banks, (chapter 371, Laws 1875,) is found a provision proper to have in mind in the further consideration of this case. In section 23 of that statute it is provided as follows: “ The sums so deposited, together with any dividends or interests credited thereto, shall be repaid to such depositors respectively, or to their legal representatives, after demand, in such manner, and at such times, and after such previous notice, and under such regulations as the board of trustees shall prescribe, which regulations shall be put up in some conspicuous place in the room where the business of such corporation shall be transacted, and shall be printed in the pass-books, or other evidence of deposit furnished by the corporation, and shall be evidence between the corporation and the depositors holding the same of |he terms upon which the deposits therein acknowledged are made.” The defendant complied with this provision of the statute, and its board of trustees prescribed regulations which were put up in a conspicuous place in the bank, and which were printed in the pass-books. As this is a controversy between the depositor and the corporation, we may turn to those regulations for the purpose of ascertaining “the terms upon which the deposits therein acknowledged are made.” See section 23, Laws 1875, p. 408. In chapter 347 of the Laws of 1878 we find an amendment of section 32 of the general act of 1875, providing that such banks will not pay a deposit, or any portion thereof, “ unless the pass-book of the depositor be produced, and the proper entry be made therein at the time of the transaction.” See Laws 1878, p. 435. Upon the evidence it must be assumed that the plaintiff’s pass-book was produced at the bank to its officers when they advanced the several sums delivered by them to the party who produced the pass-book as and towards payments upon the accou nt of the plaintiff. Whether the plaintiff was present herself when the pass-book was presented and the several sums advanced by the defendant, or whether the pass-book was obtained surreptitiously from her possession, and clandestinely presented to the officers of the defendant, and the several entries made thereof at the time of the several advances made by the defendant, were questions of fact which ought to have been submitted to the jury. The evidence was conflicting. If the plaintiff is believed as a witness, she did not present the pass-book; she did not receive the sums of money advanced by the defendant; she did not authorize any person to use the pass-book for the purpose of obtaining the money from the defendant. If she is believed, a fraud was practiced upon her by procuring the pass-book, carrying it to the defendant bank, soliciting the money upon the account, receiving the money from the defendant, and allowing the defendant to make the entries in the pa^s-book. The degree of intelligence or understanding which the plaintiff possessed; the extent of her ability to read the writing; to read figures; to comprehend accounts; to understand the different sides of the account, and the significance of entries therein,— were questions appropriate for the consideration of the jury in determining what credence should be given to her testimony. So, too, the testimony of the defendant’s officer, who, in effect, testifies that he paid the moneys to her, is to be considered, and the light of the circumstances disclosed by him as to the time of day when the payments were made, as to the extent of his knowledge and acquaintance with the plaintiff, as to the extent of his confidence in his supposed identification of the plaintiff as the party who produced the passbook, together with all other circumstances bearing upon the inquiry-as to whether the money was received by the plaintiff, or by another person who fraudulently produced the pass-book. We think the evidence called for the submission of such questions to the jury for their determination.

Again, it appears by one of the regulations or by-laws adopted by the defendant, under the statute authorizing such regulations or by-laws, it was provided, among other things, viz.: “The treasurer will endeavor to prevent frauds, but all payments made to persons producing the pass-book shall be deemed valid payments, and shall discharge the bank from any further liability. Yo depositor shall be entitled to draw any principal or interest without producing the original pass-book, and having the amount entered therein. ” According to the provision found in section 23 of the act of 1875, to which we have already referred, this regulation is “evidence * * * of the terms upon which the deposits therein are made.” It was therefore a part of the defendant’s agreement with the plaintiff that it should “endeavor to prevent frauds.” It was the duty of the defendant to make proper investigations to obtain proper information and proper knowledge of the identity of the party who presented the pass-book, in order to carry out that part of its contract rhentioned in the regulation or by-law from which we have quoted. Appleby v. Bank, 62 N Y. 12. Whether or not the bank exercised proper care in making the advances upon the pass-book, under the circumstances disclosed by the evidence, is, and we think was, a question of fact which ought to have been submitted to the jury. Such is the rule laid down in Cornell v. Bank, 9 N. Y. St. Rep. 72. In Smith v. Bank, 101 N. Y. 58, 4 N. E. Rep. 123, it was held that “possession by a stranger of the pass-book of a depositor in a savings bank constitutes no evidence of a right to draw money thereon.” It was further held in that case, “that to make payments to one having no other evidence of authority than possession of the book a protection to the bank, it is necessary for it to show some special contract with the depositor, authorizing such a mode of payment. ” In the case to which we have just referred, in closing the opinion Judge Huger says: “The court below erred in refusing to submit the question to the jury as to whether, upon the evidence in the case, the defendant exercised reasonable care and prudence in making the alleged payments.” It was said in Boone v. Bank, 84 N. Y. 88, that where the bank “has agreed to use its best endeavors to prevent fraud it must exercise diligence, and is put on inquiry by circumstances of suspicion.” There is some evidence in the case in hand, which, if credited, would warrant the conclusion that there was not the fullest care and highest caution, and perhaps would uphold a finding that there was not an exercise of ordinary care and diligence. We refrain from commenting on the evidence, as the views we have already expressed lead to a new trial, where the questions of fact must be determined by a jury. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Martin, J., concurs. Merwin, J., concurs in the result.