turb the rule stated in the cases to which we have alluded. These views lead us to sustain the decision made at special term. Judgment affirmed, with costs.

MARTIN, J., concurred. MERWIN, J., not sitting.

Fox v. ONONDAGA COUNTY SAV. BANK.

(Supreme Court, General Term, Fourth Department. July 20, 1889.)

1. SAVINGS BANKS-ERRONEOUS PAYMENTS.

In an action to recover money on deposit a witness for defendant testified that plaintiff's pass-book was presented at the bank when the regular teller was absent, and the money was drawn out in each case a day or two after being deposited, and in about the same amounts, and paid by him to the person presenting the pass-book, whom he believed to be plaintiff, whom he did not know. Plaintiff denied having presented the pass-book or received or authorized the several payments. Held, that the questions whether she did or not, or whether the pass-book was stolen from her and clandestinely presented to the bank, and the money obtained by a third person, were for the jury.

2. SAME.

Laws N. Y. 1875, c. 371, § 32, as amended by Laws N. Y. 1878, c. 347, in respect to savings banks, provides that the deposits shall be paid to a depositor or his legal representative, after demand and previous notice, under regulations prescribed by the board of trustees, which are to be conspicuously posted in the place of business, and printed in the pass-book furnished by the bank, and which shall be evidence between it and depositors of the terms on which deposits are made; but that no payments will be made unless the pass-book be produced, and the proper entry made therein at the time of the transaction. Defendant adopted a by-law providing that "the treasurer will endeavor to prevent frauds, but all payments made to persons producing the pass-book shall be deemed valid payments, and discharge the bank from any further liability." Held, that the question whether or not, under such agreement, the bank was negligent in making advances on the pass-book was for the jury.

Appeal from circuit court, Onondaga county.

Action by Mary Fox against the Onondaga County Savings Bank, to recover $1,613.10 and interest, deposited with defendant, a savings bank doing business at Syracuse, N. Y., and as the plaintiff alleges never repaid to her by defendant, or drawn out upon her order, or by her authority. The amount of the deposit is admitted by defendant, who alleges that "upon the presentation of said pass-book, and demand therefor by said depositor, or other person lawfully entitled to receive the same, payments were made by the defendant, and duly entered upon said pass-book at the respective dates of such payments," amounting in the aggregate to $1,642. The answer also sets up that at the time the account was opened "it was understood and agreed by and between said depositors and the defendant that the defendant might and should from time to time pay, to any person presenting the pass-book, the whole or any part of any sum remaining to the credit of said account, as the same might be demanded, in accordance with the rules and regulations of said defendant for the conduct of its business, which said rules and regulations were also well known and assented to by said depositor, and were published and contained in the pass-book issued as aforesaid at the opening of said account, and were also at all of said times duly and conspicuously posted in the business office of the defendant. That upon the occasion of each and every of such payments made said defendant exercised due care and diligence to ascertain that the person demanding such payment has the right and authority to receive the same. Defendant further alleges that if any of such payments were in fact made to any person not entitled to receive the same, that such fact is due solely to the negligence and wrong-doing of the plaintiff;" thus claiming by way of defense that it paid the amount of the deposit directly to plaintiff, and that, if the money was not paid to the plaintiff, but was paid to a stranger, then that it was paid upon the production of the plaintiff's pass-book, and v.7N.Y.s.no.1-2

such payment legally discharges the bank. It was undisputed that defendant paid out the money, except a small balance of $1.20 left standing on its books to the plaintiff's credit. Plaintiff testified that she never drew or received any of the money so deposited to her credit, except the sum of $30, the first amount drawn upon the account, and that she never authorized any other person to draw any of the money. That her bank-book was stolen, and that she first discovered that fact July 25th, after the last deposit, and that she immediately, upon discovering the loss, went to the bank to notify the teller not to pay out any money of hers; that her book had been stolen; and then first learned that the money had been withdrawn. The testimony further shows that the plaintiff, although able to write her name, cannot read writing, nor write more than her name; that she had before this time had a small deposit with the defendant; that she reposed great confidence in the officers of the bank; that she kept her bank-book at her rooms in her trunk. It further appeared that she had had some trouble with her husband, and they had separated; that she lived in the house with one Mrs. McGovern, in whom she had confidence, and who was accustomed to make deposits for the plaintiff in this bank, and who had knowledge of the place where her bank-book was kept, and the state of this, her account; that at about the time of the discovery of the loss of this book Mrs. McGovern disappeared, and her whereabouts have not been discovered; that the plaintiff was ignorant of the fact that any money had been charged to her on her bank-book, although there appears to have been many drafts upon this account. It further appeared that the money was usually drawn out in about the amount deposited, and generally within a day or two thereafter, and always at the noon hour, between 12 and 1 o'clock, when the regular teller, Mr. Greenwood, who went to dinner at that hour, was absent. The witness Rose, who acted as teller in Greenwood's absence, testified that he paid this money out on the production of plaintiff's pass-book, and he believes he paid it to the plaintiff herself, although he says he did not know her. The defendant attempted to show also that the plaintiff drew the money, by proving by Rose and others that in their opinion the signatures of Mary Fox to the receipts signed at the time the money was drawn were hers, and were genuine; but one of defendant's witnesses, Mr. Truesdell, a very skillful expert on the genuineness of handwriting, swore that the signatures were not genuine, and so plainly a forgery as to require only casual observation to detect it, and the plaintiff swore positively that the signatures were not hers. At the close of the plaintiff's case defendant moved to nonsuit the plaintiff, on the ground that it appeared that the plaintiff was guilty of negligence "in such manner as to discharge the bank from liability." The court denied the motion, but at the close of the evidence the motion was renewed upon the grounds "(1) that the proofs indicate that the loss, if any, was caused by the plaintiff's negligence, and not by that of the defendant; (2) that the plaintiff's negligence contributed to the loss, and her damage, if any, sustained in this case; (3) that no negligence or bad faith on the part of the bank or any of its employés in the payment of this money has been proved, which entitles the plaintiff to recover herein; (4) no sufficient proof of demand before action brought, "-and was granted. In disposing of the motion the trial judge, among other things, observed, viz.: "It would be requiring too much credulity on the part of intelligent men, it seems to me, to say that she did not know that this money was being drawn, from time to time, as it was drawn; and a finding against any such presumption as that, it seems to me, would challenge the opposition of the court. Then the evidence is, upon the part of the bank, that the money was paid to her. She denies that. If it was paid to her, there is no question in reference to the matter. If it was not paid to her it was paid upon her pass-book; and paid, so far as this evidence is concerned, by the savings bank in good faith, and without any evidence being presented that would in any manner have challenged their attention in

any particular way, on the presentation of a pass-book, and the asking and demanding of a payment, the payment upon it, and the entering upon the pass-book in the ordinary way. Therefore, both upon the question of the payment as relieving the bank of its liability under its by-laws, and the question of knowledge on the part of the plaintiff, evidenced by the pass-book in her possession, that these payments were being made from time to time. against her deposits, I think I am compelled to say that, so far as these amounts are concerned, she is not in a position where she can recover." Plaintiff duly excepted to the ruling, and appeals from the judgment entered against her on February 29, 1888, and also from the order dismissing her complaint with costs.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Baldwin, Lewis & Kennedy, for appellant. Stone, Gannon & Petit, for respondent.

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.

66

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 sav ings 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 the 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 transac

tion." 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 account 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 pass-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. No 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 mentioned 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 clos

ing the opinion Judge RUGER 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.

VAN EPPS v. CLOCK et al.

(Supreme Court, General Term, Fourth Department. July 20, 1889.)

1. SPECIFIC PERFORMANCE-PAROL CONTRACT TO CONVEY LAND.

In an action for specific performance of a parol contract for sale of land one S., who had been agent for defendant C. for 20 years, wrote to him in March that he had seen the land in question, as directed, and paid the tax on it; that plaintiff wished to buy it, and desired to know the price. Defendant replied: "My price is $250. Please tend that business for me." S. testified that three days later he took the letter to plaintiff's house, who agreed to take the land, and he so wrote defendant C., but got no reply. Plaintiff took immediate possession of the land, built and repaired fences, grubbed, cut, and burned underbrush, etc., up to May, when defendant W., who had subsequently got a deed of the land, forcibly ousted her, and retained possession. Defendant C. said he had refused to sell to W.'s agent, as plaintiff was going to have the land. Held, that the evidence sustained a finding that plaintiff took possession from defendant's lawful agent, and exercised sufficient acts of ownership and performance under the contract to take it out of the statute of frauds.

2. VENDOR and Vendee-BONA FIDE PURCHASER.

Defendant W., who purchased the land in May, testified that he was plowing on land adjoining that in dispute after plaintiff took possession, and saw what was done there; that he saw brush fires there; that plaintiff's husband told him she was negotiating to buy the land, and had written to C. S. also testified that he told one M., the agent of W., who was trying to buy the land for W., about the negotiation between plaintiff and himself, and that he had written to C. about it. Held, that W. had sufficient notice of plaintiff's possession, and of the agreement with S., to put him upon inquiry as to her rights, and was not a bona fide purchaser.

8. SAME-RIGHTS OF PURCHASER.

The rights of a person in possession of land under a parol contract for a sale thereof are not prejudiced or diminished by a compulsory surrender of possession to a subsequent purchaser with notice of the contract and claim of ownership.

Appeal from special term, Madison county; SMITH, Judge.

Action brought by Hannah M. Van Epps against Simon Clock and John Wells, to compel the specific performance of a verbal contract made by defendant Simon Clock to sell a certain parcel of real estate to plaintiff, upon the ground that she entered into possession under the contract, and partly performed the same. The case was tried at special term, before SMITH, J., who found as conclusions of fact:

"(1) That the defendant Simon Clock, was on the 20th day of April, 1887, the owner in fee of the parcel of land described in the complaint, and was desirous of selling the same, and that said Simon Clock, at the town of Sullivan, Madison county, N. Y., then made a verbal agreement with said plaintiff to sell said land and premises to her for the sum of $250, to be paid upon