This action was originally brought by the legal representative of one Ann Caldwell, deceased, who, in her lifetime, had been a depositor in the defendant savings bank, to recover the sum of five hundred dollars, which, at the time of the depositor's death, appeared to her credit upon the books of the bank. The present plaintiff is the executrix of the original plaintiff, who, as the husband of the deceased depositor, procured letters of administration upon her estate *Page 71 and then brought this action. After the trial and during the pendency of this appeal, the original plaintiff died and the executrix under his will was substituted as plaintiff herein. The deceased depositor, prior to her marriage with Podmore the original plaintiff, bore the name of Ann Caldwell, or Colwell, and had in that name, at the time of her death, on deposit with the defendant a sum which, with interest, on the 5th day of December, 1898, the date of the demand herein, amounted to five hundred and twenty dollars. Upon defendant's refusal to pay this amount to the plaintiff this action was brought. The defendant's answer alleged, and its evidence tended to prove, a gift causamortis from the deceased depositor to one Bridget O'Reilly, to whom the deposit was, in fact, paid by the defendant, but the learned trial court expressly found that no such gift had been made, and the judgment entered upon this decision, which was in the short form, has been unanimously affirmed by the learned Appellate Division. As this affirmance compels us to assume that there is sufficient evidence to sustain the decision (Reed v.McCord, 160 N.Y. 330), the only question presented by this record, that survives for investigation in this court, is whether it was proper to exclude the evidence offered by the defendant to show its diligence and care in making payment of the deposit in question to Bridget O'Reilly. The entry upon the record, is that "Mr. Greene (defendant's counsel) produced evidence tending to show that the bank (the defendant) exercised due care in making the payment." This evidence was excluded, and defendant excepted. The evidence thus offered and excluded is to be considered in connection with the by-laws of the defendant received in evidence, which, so far as material to this discussion, provide that "on the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representatives. * * * Although the institution will endeavor to prevent frauds and impositions, yet all payments made to persons producing the pass book issued by it shall be valid payments to discharge the institution." *Page 72
We think the evidence was properly excluded. The rule of diligence invoked by the defendant bank applies only to the case of a living depositor. When through a depositor's carelessness his bank book gets into the hands of a third person who presents it to the bank, the latter may show its care and diligence in making payment to the person presenting the pass book, and thus protect itself against a second demand for payment by the careless depositor. But this by-law which is designed to protect the bank in such a case must be read in connection with the other by-law, which provides that after the depositor's death payment must be made "to his or her legal representatives." This latter by-law is for the protection of the depositor who can no longer protect himself, and, therefore, the bank is bound to see that payment was made to the proper person. Payment to any other person is made at the bank's peril. This is the rule laid down inFarmer v. Manhattan Savings Institution (60 Hun, 465), followed in the case at bar on a former appeal in 48 App. Div. 221, and which we now approve.
The judgment herein should be affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, MARTIN, VANN and CULLEN, JJ., concur.
Judgment affirmed.