Opinion
April, 1897.
John W. Pirsson (John E. Parsons and J.A. Beall, of counsel), for appellant.
D.M. Neuberger, for respondent.
On a former trial of this action the jury found for the plaintiff, and the judgment was affirmed by the City Court, General Term, but was reversed by the Appellate Term for errors of law. 17 Misc. 574. The new trial also resulted in favor of the plaintiff, and the judgment having been affirmed by the General Term, the case is before us stripped of the errors for which the former judgment was reversed.
On the previous appeal we held that notwithstanding the rules printed in a savings bank-book a payment to a person not entitled to receive it, though he may have possession of and present the book, will not discharge the bank, if at the time of such payment a fact or circumstance existed calculated to excite the suspicion of and inquiry by an ordinarily careful person, and the bank fails to make proper inquiry or exercise ordinary care or diligence.
The testimony of the plaintiff, corroborated by Herman Geitelsohn, now shows that on the morning after the plaintiff discovered that his bureau had been broken open and his bank-book taken therefrom he went to the bank, and was there familiarly addressed by name by Sayler, the paying teller. This testimony (which indicates that Sayler knew the plaintiff) went to the jury, and they found it to be true. When asked why it was not given on the former trial the explanation was that the question was not asked. It further appeared that the plaintiff made thirty-eight deposits with defendant and had at nine different times drawn money from the bank. So that the fact testified to, that the paying teller knew the plaintiff, was not impossible or even improbable. At all events the jury believed the testimony, and while the General Term could have discredited it and reversed the judgment on the facts, we have no such power. We are merely to review the exceptions taken and the errors of law presented. Briscoe v. Litt, 19 Misc. 5; Ebenreiter v. Dahlman, id. 9; Standen v. Brown, 152 N.Y. 128. The General Term was evidently satisfied with the testimony, because it affirmed the judgment, and such affirmance closes all further inquiry into the facts. Id.
So we have the case of a paying teller knowing the depositor, even by name, and yet paying out the entire deposit to a stranger on production of the bank-book. This with the other evidence is sufficient to sustain a finding that the defendant did not exercise ordinary care and caution under the circumstances, but was guilty of negligence warranting the verdict charging it with the amount paid.
The authorities bearing upon the subject were elaborately reviewed by us upon the former appeal, so that a mere reference to the opinion then filed is all we deem necessary now.
The exceptions to the admission or exclusion of evidence are without merit.
The exceptions chiefly relied on by the defendant are those taken to the charge of the court, which on the whole, as modified, seems unobjectionable. Smith v. Matthews, 152 N.Y. 152.
Judgment affirmed, with costs.
Present: DALY, P.J., McADAM and BISCHOFF, JJ.
Judgment affirmed, with costs.