Hankowska v. Buffalo Savings Bank

McLennan, P. J.: I am of the opinion that, upon the undisputed facts appearing in the record, the plaintiff was entitled to recover as matter of law, and that, therefore, the refusal of the court to charge as requested was entirely immaterial. The evidence presented by the plaintiff, none of which is disputed, shows that the plaintiff opened an account with the [695] defendant under the name of Antonina Hankowska and received a pass book and a special form of check or order which required the signature to be acknowledged before a notary public. The defendant paid the sum of $200 to one Helen Kaminski upon a forged check, signed her “ X ANTUIA HANKOWSKA” mark with the certificate of a notary public attached, certifying that Antuia Hankowska had appeared before him and acknowledged the signature to the check. The pass book was presented at the time of such withdrawal, it having been stolen from the plaintiff. The signature card required by defendant at the time of the opening of the account showed the depositor’s name to be Antonina Hankowska, and that she signed by her mark. The defendant could not, therefore, under ordinary circumstances, be charged with negligence in failing to detect forgery in the making of the mark. It assumes to rely upon the rule contained in the pass book providing that the possession of the pass book shall be sufficient authority to warrant any payment made and entered in it, and upon the facts shown upon the face of the notary’s certificate, which it had the right to presume to be correct. “ It is well settled, however, that payment made to a person who is not in fact entitled to draw the deposit, though he may have possession of the book and present it at the time of payment, will not discharge the bank, unless it exercised at least ordinary care and diligence in paying the money to the wrong person.” (Gearns v. Bowery Savings Bank, 135 N. Y. 557.) In addition to requiring the presentation of the pass book, it was defendant’s duty to use ordinary care and diligence to ascertain whether the check or order presented was signed by the depositor and not by someone else. The defendant relies solely upon the presumption appearing upon the face of the notary’s certificate to determine this fact. The presumption to be drawn from that certificate is merely the fact stated in it, viz., that one Antuia Hankowska had signed the check by her mark, and that she had acknowledged the execution thereof before the notary. I know of no rule of law whereby the [696] defendant would be justified in presuming that such a certificate in reality referred to Antonina Hankowska. Upon these facts I think the presumption of law arises that the defendant failed to exercise any care to ascertain whether the order or check was signed .by the depositor and the court would have been warranted in directing a verdict for the plaintiff, if the defendant showed no facts in contradiction. I am of the opinion that the evidence presented by the defendant in no way contradicts or varies the evidence of the plaintiff. On behalf of the defendant it was merely shown that the teller who paid the forged check knew the person who presented it, had paid her money before, knew the notary who executed the certificate, and knew his signature. None of these facts indicates any care on the part of the teller, and I fail to see how any question of fact was presented upon all the evidence. This case has been tried three times before a jury, resulting in each instance in a verdict for the plaintiff. Upon each trial the facts have appeared substantially as upon the present trial. It seems to me that the refusal to charge as requested was harmless in any view of the case, and that the judgment should be affirmed, with costs. All concurred, Kruse, J., in result in separate memorandum, except Robson and Lambert, JJ., who dissented in an opinion by Lambert, J. Kruse, J.: I agree with Mr. Justice Lambert that there is enough of the evidence to make the question of the negligence of the savings bank one of fact, and perhaps the charge is not entirely free from criticism. But there have been three trials. The verdict of the jury has been favorable to the plaintiff in each, and in all human probability the result will always be the same. I think, under the circumstances, we had better affirm the judgment and end the litigation.