Misc.] City Court of New York, June, 1896. APPEAL from judgment in favor of the plaintiff, entered upon a verdict, and from an order denying a motion for a new trial. James A. Gray, for respondent. Douglass & Minton, for appellant. CONLAN, J. This is an appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. The action was commenced by the plaintiff, as assignee of her husband, to recover for services alleged to have been rendered by him to the defendant, Robert G. Dun. On the trial the value of the services was not seriously disputed, as the defendant contended that he was not liable for any services claimed to have been rendered by the plaintiff's assignor on the grounds that there was no employment by them. The evidence of the plaintiff's assignor is to the effect that, on February 28, 1893, he was employed by one Greene as an accountant, to work on the books of R. G. Dun & Co.; that subsequently and about April, 1893, said Greene, as the representative of R. G. Dun & Co., changed the employment to a yearly hiring on a salary of $2,000 per year; that about November or December of that year said Greene told plaintiff's assignor that he was the attorney for R. G. Dun & Co., and that Mr. Dun, who was the head of the concern, requested that he should make out his (Dun's) private account, stating at the same time that said assignor should be paid for such services in addition; that said assignor, at the request of said Greene, did take the books of R. G. Dun to his home, and worked on them nights, holidays and Sundays for a period of about four months, such work covering a period of about seventeen years; that during the progress of the work defendant Dun asked him how he was getting along with the work, and gave him a memoranda of names and dates, covering about eight years of the work; that when the work was completed it was returned to Mr. Greene at the office of R. G. Dun & Co. Plaintiff testified that Greene told her that her husband was to be paid liberally for this work. The defendant called Edward Greene, who testified to the original employment by him of the plaintiff's assignor for R. G. Dun & Co., but denies that he City Court of New York, June, 1896. [Vol. 17. employed him on account of defendant, or that the work complained for was done for defendant or that the same was extra work, but that the same was work required to be done in the regular course of his employment by R. G. Dun & Co. At the conclusion of the testimony the defendant did not move to dismiss the complaint or direct a verdict for the defendant; and having taken his chances with the jury for a favorable verdict, he was precluded from asserting for the first time on appeal that the facts did not warrant their submission to the jury or that the verdict is against the weight of evidence. Bennett v. Levi, 46 N. Y. St. Rep. 754. There were numerous objections and exceptions taken during the trial, but as they all related to the authority of Greene to bind the defendant, and that being a question for the jury, it was fairly submitted to them, and they having in effect found the power to employ and the employment, we do not feel justified in disturbing the verdict. Judgment affirmed, with costs. VAN WYCK, Ch. J., and O'DwYER, J., concur. SIMON UHLFELDER et al., Respondents, v. EDWARD J. H. TAMSEN, as Sheriff, Appellant. (City Court of New York, General Term, June, 1896.) Parties Intervention. Where it clearly appears that the person applying to intervene has an interest in the action, his right to be brought in is absolute, and the court cannot require him to give security for costs as a condition. APPEAL by Daniel Lenobiel and Jacob Cohen from so much of an order granting the motion made by Lenobiel and Cohen for leave to intervene as parties defendant as requires them to furnish security for costs. Jacob Barnett, for appellant. Burritt & Stone and Arthur Furber, for respondents. Misc.] City Court of New York, June, 1896. O'DWYER, J. The part of the order appealed from should be reversed. The discretion referred to in Hart v. Kohn, 12 Misc. Rep. 648; 33 N. Y. Supp. 272, was a determination as to whether the party had an interest. Here that question has been determined in favor of the applicant, and section 452 of the Code of Civil Procedure is mandatory that, where the applicant has an interest, the court must direct him to be brought in. Rosenberg v. Salomon, 144 N. Y. 92. That part of the order appealed from is reversed, with costs. VAN WYCK, Ch. J., concurs. Portion of order appealed from reversed, with costs. ESTHER ABRAMOWITZ, Respondent, v. THE CITIZENS' SAVINGS BANK, Appellant. (City Court of New York, General Term, June, 1896.) An action to recover the balance of a deposit claimed to have been unlawfully paid to another person cannot be claimed to be prematurely brought where the refusal to pay was not placed on the ground that the bank was entitled to ninety days' notice. In such an action it is not incumbent upon the plaintiff to show any negligence on the part of the bank. 3. Same. A savings bank is bound to exercise ordinary care and diligence to protect its depositors from fraud and larceny, although its by-laws provide that payments to persons producing the pass-book shall be valid to discharge it. APPEAL from a judgment entered on a verdict in favor of the plaintiff and from an order denying a motion for a new trial. John Alexander Beall, for appellant. Robert Goeller, for respondent. O'DWYER, J. This action was brought to recover a balance of a sum of money deposited by the plaintiff with the defendant, for which the defendant issued its pass-book. City Court of New York, June, 1896. The defenses as urged on the trial were: [Vol. 17. "(1) That the defendant paid out the money to a person having possession of the pass-book, and that the defendant used all proper care and diligence, and exercised its best efforts to ascertain that the person to whom the payment was made was the depositor. "(2) That the action was prematurely brought." There is no merit to the second defense. When the plaintiff attempted to draw the money from the bank she was met with its refusal of payment, not on the ground that it was entitled to ninety days' notice, but on the ground that the money had already been paid to someone else. The defendant could only have taken advantage of the rule requiring ninety days' notice before withdrawing money by having refused to pay the money when demanded by the plaintiff on this specified ground. When plaintiff rested she had made out a prima facie case against the defendant, and the motion to dismiss was properly denied. The evidence shows that she had deposited with the defendant $222.25 and had drawn out $22.15, leaving a balance of about $200; that she demanded that sum from the defendant, and that it refused to pay; that she never authorized anyone to draw the money from the bank, and did not send anyone to the bank to draw any, and that she never gave a written order to the bank. It was not incumbent on her to show any negligence on the part of the defendant. It is provided in the defendant's by-laws that: "All deposits and all withdrawals will be entered in a book given to the depositor on making his first deposit, which shall be the voucher of the depositor and the evidence of his property in the institution, and the presentation of the book shall be sufficient authority to the bank to make any payment to the bearer thereof." And that, "All payments to persons producing the pass-book issued by the bank shall be valid payments to discharge the bank." Notwithstanding these by-laws of the defendant it was bound to exercise ordinary care and diligence in order that its depositors may be protected from fraud and larceny. Appleby v. Erie Co. Sav. Bank, 62 N. Y. 12; Allen v. Williamsburg Sav. Bank, 69 id. 317; Kummel v. Germania S. Bank, 127 id. 489. The question as to whether, under the circumstances disclosed by the evidence in this case, the defendant had exercised ordinary Misc.] City Court of New York, June, 1896. care and diligence was properly submitted to the jury. It cannot be said, as a matter of law, that the defendant exercised ordinary care and diligence in having so few test questions when the plaintiff could neither read nor write. No negligence was shown on the part of the plaintiff, and she testified in answer to her counsel: "I never showed the book to anybody; the bankbook was lying in a trunk; I went to work and did not tell them I had money. "Q. Was your trunk always locked? A. Yes, sir. "Q. Did your husband ever have the key? A. No." The only evidence in the case tending to show the amount of care taken by the defendant in paying out the money was that of the witness Sayler, the teller of the defendant, who testified that he had asked the person who drew the money, when she told her age, whether she was married or single, her name, her husband's name, and where she was born; and the answers given by her tallied with the answers given to these questions by plaintiff at the time when she became a depositor with the defendant. On cross-examination he testified: "I did not ask her whether or not she was a depositor; I simply asked her her name, how much money she wanted." Under these circumstances it cannot be said that the jury were not justified in saying that the defendant did not exercise reasonable care and diligence. The judgment and order appealed from should be affirmed, with costs. CONLAN, J., concurs. Judgment and order affirmed, with costs. AUGUST TRENKMANN, Appellant, v. MINNIE L. SCHNEIDER, Respondent. (City Court of New York, General Term, June, 1896.) 1. Lease-Covenant to furnish steam power. A covenant in a lease of premises for business purposes by which the lessor is to furnish a specified quantity of steam power means that such quantity shall be furnished for the whole working period of each working day during the term, and a failure to do so constitutes a good defense to an action for rent accruing subsequent to an abandonment of the premises. |