American Surety Co. v. Empire Trust Co.

The law, which my associate, Judge LEHMAN, has correctly stated, when applied to the facts in this case leads rather to an affirmance than to a reversal. The negligence of the Farmers and Mechanics Savings Bank of Lockport consisted in acts which identified the thief as the payee of the checks which the Wyandotte Savings Bank cashed.

Lukas Szmytki had been a depositor in the Farmers and Mechanics Savings Bank of Lockport for many years. His deposits had accumulated without withdrawals. He lived in the neighborhood of the bank all of the time. A thief stole his bank books and sent them from Wyandotte, Michigan, to the bank with a request for the deposits and the return of the bank books. The fact that their long-time depositor had left Lockport and gone to Michigan and that he desired his savings in one lump sum aroused no suspicion in the minds of the bank officials. They did not send to Szmytki's home address in Lockport or attempt to communicate with him at his last-known place *Page 188 of residence in any way. They did not attempt to verify his removal. Neither did they carefully compare or investigate the signature of the thief with that of their depositor. The bank not only sent on a check drawn to the name of Lukas Szmytki, but returned the bank book with a letter to the thief in the name of Lukas Szmytki, by means of which he identified himself as the genuine Szmytki to the Wyandotte Savings Bank.

The negligent acts of the Lockport bank, whereby the thief was furnished by it with the means of identifying himself as Szmytki, the payee, estops the Lockport bank and its assignee from maintaining this action. Giving to a thief a depositor's pass book and a letter addressed to him by the name of the depositor would be sufficient identification for any bank in the ordinary course of business. The negligence commenced with the Lockport bank in failing to make any inquiry, through extreme carelessness, about the person to whom they were giving checks and a depositor's pass book, and to whom they were writing letters in the name of a depositor.

There is much more in this case than the mere giving of a check drawn to the order of a genuine depositor; there are the additional facts of identification furnished to the drawee, whereby he could readily deceive innocent purchasers for value.

For these reasons I am for affirmance.

POUND, Ch. J., KELLOGG and HUBBS, JJ., concur with LEHMAN, J.; CRANE, J., dissents in memorandum in which O'BRIEN, J., concurs; not sitting, CROUCH, J.

Judgment reversed, etc. (See 262 N.Y. 635.) *Page 189