Defendant, a trust company, carried on as a part of its business that" of a bank of deposit and discount. Plaintiffs are the trustees of a large estate, and opened an account with defendant in March, 1903. This was apparently an active account from its inception. Large deposits were made from time'to time; and commensnrately large amounts were withdrawn as the varying needs of the business of the estate required. The trustees had a trusted employee, Hennessey by name, who, as part of his duties, had charge as bookkeeper of the trustees’ estate accounts, and apparently almost exclusive charge of the bank account with defendant, having custody of the pass book issued by defendant to plaintiffs, which he invariably during the period in question, in this action personally presented to defendant when it was written up, and it was again returned to his hands with the vouchers, or canceled checks, when it had been balanced. Checks upon this account could be drawn by either trustee, but only on the *33personal signature of one or the other of them. Each check so drawn was numbered, the numbers being consecutive and each check was properly entered on the corresponding stub in the check book used by the trustees. All checks actually drawn by either trustee between March 15, 1904, and July 17, 1905, were produced at the trial, and the several amounts of such checks agree with those appearing on the corresponding stubs in the check book. After crediting defendant with all the money so drawn by check of either trustee a balance remained of $52,043.73, of which defendant refused to pay $34,671.84, claiming credit for twenty-eight checks which Hennessey, the bookkeeper, had forged and uttered between May 18, 1904, and June 22, 1905. During this period Kissel, one of the trustees, seems to have had practically the entire charge of this trust account, as his cotrustee was during that time absent in Europe, except for about thirty days. All the checks forged by Hennessey apparently bore the name of the trustee Morgan. The first of these forged checks was for $400, and appears on the books of the bank as paid May 18, 1904. The pass book had last prior to that date been balanced March 15, 1904. It was next balanced August 11, 1904. Before the pass book was returned to plaintiffs, after it had been so balanced, defendant had cashed, including the first foiged check, already referred to, four of Hennessey’s forged checks, aggregating $3,073.33. Defendant concedes its liability to plaintiffs for this sum. Eight days after the pass book was balanced and returned, defendant cashed another of Hennessey’s forged checks for $480. The next forgery was September 10, 1904. Thereafter at varying intervals Hennessey continued to utter and obtain payment on similar forged checks till May 20, 1905, which is the last date of such a check preceding the discovery by plaintiffs of the forgeries. Plaintiffs’ pass book was balanced during this time, October 12,1904; January 6, 1905, and April 26, 1905, and again June 23, 1905. When the pass book was balanced, the checks were not entered separately in the book itself, but were entered as the total amount they aggregated, with the added statement, “ Less cks ret’d per list,” and a list of all checks charged to the account accompanied the vouchers, returned with the pass hook, each time it was balanced. The check list and the returned vouchers, of *34course, included the forged checks; but, as they invariably were delivered to Hennessey, he removed the forged checks from the parcel of vouchers returned, and destroyed them with the check list on each occasion when the book was balanced during the period over which his forgeries extended, so that neither the forged checks nor the check lists actually came to the possession or knowledge of plaintiffs. It is also true that plaintiffs never actually compared the amounts of balances of their account with defendant, as' shown by the pass book, with their own books of account of the estate funds to see if they agreed. The acting trustee did, however, each time the pass book was balanced and the vouchers returned, compare the vouchers, which Hennessey delivered to him, with the check stubs, and, of course, found that they agreed exactly. Hennessey, as bookkeeper of the estate account, kept it so that it showed exactly the condition it should have been in, even going so far as in each instance to credit to the estate items of interest on the total balance there should have been on deposit with defendant to the credit of the estate. The comparison of the returned canceled checks, which came to the hands of the acting trustee, with the stubs in the check book, of course, did not inform him in any way that the forged checks had been charged by defendant to the trust account. The court charged the jury in effect that the examination and comparison of the returned checks, which the trustee made, was not in law the performance of the duty to make reasonable examination of the estate’s account with defendant when the pass book balanced, together with the accompanying vouchers and check lists, was returned by defendant. The court further held that this duty of inspection and comparison must be exercised within a reasonable time; and on this point submitted to the jury, asa question of fact, whether the eight days which elapsed between the return by defendant of the vouchers, which included the first forged checks and the presentation of the next succeeding forged check, was a reasonable time within which plaintiffs should have made the required examination, discovered that the accounts had been depleted by the forged checks, and notified defendant of the fact. On this point I think there can be no doubt but that defendant had at least all the advantage in the charge that it was entitled to. As to the forged checks presented after that date the *35court held, as matter of law, that a reasonable time to make what it held to be a reasonable examination of the account and vouchers had elapsed, and that plaintiffs were, therefore, precluded from recovering the amount of the forged checks paid thereafter because, except for plaintiffs’ negligence, the prior forgeries would have been discovered, and the success of the subsequent ones necessarily forestalled and prevented.
It is unnecessary now to determine whether the court was correct in so holding, in view of the statement made by plaintiffs’ attorney that their appeal, which brings up this question only, would not be pressed provided the judgment, as it now stands, should be affirmed by this court.
This view of the law when applied to this case would, therefore, dispose of all question as to defendant’s liability to answer for moneys paid on forged checks after that immediately following-first balancing of the pass books and return of vouchers, except for the occurrence of other and subsequent facts, which the court held was sufficient to call for the submission to the jury of the question whether the defendant had not been guilty of contributory negligence on its part, which made the continued successful perpetration of these forgeries possible. If the success of these forgeries was due to the negligence of plaintiffs, then, of course, plaintiffs and not the defendant must bear the loss thus occasioned. But if the loss, or some part thereof, was also due, or would not have occurred, but for the negligence of defendant, which contributed to the successful perpetration of the forgeries, and the consequent loss thereby, then, following the well-recognized principles applicable to negligence cases, the defendant cannot escape its primary liability as plaintiffs’ debtor on the plea that the loss was occasioned by the latter’s negligence. (Critten v. Chemical Nat. Bank, 171 N. Y. 219.)
The determination of the question of defendant’s contributory negligence was submitted by the trial court to the jury only so far as it might be found by them to affect the payment of the forged checks presented after January, 1905. The facts disclosed by the evidence, which were submitted for the consideration of the jury, as bearing upon the solution of this question, were as follows : On January 5, 1905, the acting trustee, for the purpose of transferring *36to the credit of the trust fund in a Hew Jersey bank practically the whole balance, which he then supposed stood to the credit of the estate with defendant, drew his check for $14,000 and delivered it to Hennessey to deposit for the purpose of the transfer. At that time the actual balance to the credit of the estate as it appeared on defendant’s books was less than $1,000, the difference being, of course, represented by the amounts previously paid by defendant on Hennessey’s forged checks. Hennessey did not deposit this . check on the fifth, as directed, but on being asked by the acting trustee if he had done so, did actually deposit it on the sixth. This delay was at Hennessey’s instance only, and apparently for the purpose of delaying the actual presentation of the check to defendant, it being apparent that, if presented while the account with defendant was in its condition at that time, the large overdraft would be immediately reported to the acting trustee, and his forgeries would, as a necessary result, be disclosed. In the usual course of business this check was returned to the Hew York Clearing House on Saturday, the seventh, and would reach defendant early Monday morning. Anxious to forestall immediate action by defendant when this overdraft should in fact be discovered, Hennessey visited defendant’s banking office twice Monday forenoon and stated to the teller that he was worried about a probable overdraft on this estate account, but that it would be made good at once. This was personal notice that an overdraft had occurred, of which the defendant necessarily would be also further informed both as to its time and extent by its own books of account as soon as the check was presented for payment. So large an overdraft, having its inception in the check of the fifth of January, though not presented for payment, following the regular course of business, till the ninth, was so serious an irregularity in the ordinary course of banking business that it would seem, in and of itself, to have been sufficient to have suggested some inquiry by the bank as to its occasion, especially as it was known that this was a trust account, and for that reason upon a somewhat different basis from that of the ordinary commercial account. But there appears a further fact in connection with this overdraft which still more clearly called for some active examination as to what it meant. The acting trustee just at this time determined to transfer from *37another bank, in which .funds of the estate were deposited, the sum of $14,219.85 and deposit it with defendant. The check to defendant’s order for this amount was on January ninth duly drawn, but was dated January tenth and delivered to Hennessey to be deposited on the tenth. If deposited on the tenth the overdraft would not be covered till too late, so Hennessey changed the date of this check from the tenth to the ninth, the erasure and change of the “ 0 ” of the “ 10 ” toa “9 ” being clearly visible on even a casual inspection. He then took the check, thus altered, to defendant and deposited it on the earlier date. Whatever may have been the legal duty of defendant as to examination of this check and whether there would be any liability to the drawer thereof, if accepted in its altered form, is here of no consequence.. The plain alteration of the check, in and of itself a forgery, when made without authority of the drawer, was a material and important circumstance bearing upon the negligence of defendant at this juncture, especially as the large overdraft existing against this account was to be made good only by the deposit of this manifestly questionable check. The court had held that the fact that the forged checks differed from the genuine ones in that they were not numbered and were on different colored paper was not, standing alone, sufficient evidence of defendant’s contributory negligence to warrant a submission of that question to the jury. But in submitting that question to the jury as to the time at and following the overdraft the jury was properly instructed that those circumstances might be considered in arriving at their conclusion. The four facts submitted to the jury by the court, as those from which they were to determine whether, or not, defendant had been guilty of contributory negligence, were, therefore, the overdraft, the altered check by which the overdraft was apparently met, that the forged checks were not numbered, and the different color of the forged checks. To those circumstances, it seems, there might have been added the fact that by agreement between plaintiffs and defendant in consideration of the large balances which the plaintiffs would maintain with defendant, the rate of interest allowed thereon was increased frorri two per cent to three per cent; and though this balance had solely by reason of the payment of the forged checks been reduced for a considerable period prior to the overdraft to a comparatively small sum, followed by the overdraft itself defend*38ant made no examination as to the occasion, and gave plaintiffs no notice thereof.
The jury was warranted beyond question, as it seems to me, in finding, as it has, that the contributory negligence of defendant was established. This would be true even if the burden of proof were on the plaintiffs to establish such negligence. However, I do not believe that the burden of establishing that fact rested on them, but that it did rest, as in all cases within that class, on the .party to whom it may be charged.
The charge of the court was a careful and accurate presentation of the case to the jury, so far, at least, as the questions on this appeal are concerned, and the verdict is fully sustained by the evidence.
The judgment and orders appealed from should be affirmed, without costs of this appeal to either party.
McLennan, P. J., concurred.
Judgment reversed and new trial ordered, with costs to defendant to abide event, unless the plaintiffs stipulate within twenty days to reduce the verdict as of the date of recovery to $3,553.33, with interest thereon from July 17, 1905, in which event the judgment is modified accordingly and as so modified affirmed, without costs of this appeal to either party.