I dissent. The action is brought to recover a deposit made by respondent in the defendant bank. The action has been tried three times and three verdicts have been rendered for the *697plaintiff. The judgment in the respondent’s favor, upon the first trial, was affirmed by the Special Term, and was reversed by this court for error in the admission of evidence, but without opinion. (149 App. Div. 929.) The second judgment was set aside by the Special Term as being against the weight of the evidence. The judgment upon the third trial has been affirmed by the Special Term, and this appeal is from such order and judgment of affirmance.
It appears that the respondent is an illiterate Polish woman, residing in Buffalo. Upon the opening of her account with appellant she was furnished a pass book, upon which were printed the rules governing the withdrawal of the account, and which provide that the production of the passbook and indorsement therein of payments made upon the account shall be sufficient evidence of proper payment from such account. She was also provided by the bank with special check forms, which had upon their face a notary’s certificate to be filled out and certified, to the effect that the person' signing such check acknowledged such signature.
It appears that the respondent kept this pass book and these check forms in a drawer at her home; that on September 9, 1910, one Helen Kaminski, a relative of the respondent, obtained possession of one of the check forms and filled same in, signing thereto the name “Antuia Hankowska,” and pro-, cured the notary’s certificate to be filled out and certified by a notary public, to the effect that ‘ ‘ Antuia Hankowska ” acknowledged the signing thereof. Helen Kaminski then took this check to the defendant bank and inquired whether it was properly executed. She was informed that it was. She then stole the pass book from the respondent and presented pass book and the check to the appellant and received payment of the check. It is claimed that all this was without the knowledge or consent of the respondent and the jury has so found.
Respondent contends that the obligation of the bank to repay her money is not so modified by the rule above referred to as to relieve the bank from its duty of. reasonable care in paying only to her or upon her order. This is undoubtedly true, in view of the further rule of the bank, in evidence, which distinctly provides that payment will only be made to the depositor *698or her authorized payer. This, then, leaves the issue to be determined one of due care on the part of the bank, as excusing its breach of the contract to repay the money to respondent.
Appellant contends that the decision by the Special Term upon the second appeal, that the verdict was against the weight of evidence, was controlling upon the Special Term upon this appeal, inasmuch as the evidence upon the. two trials was practically identical. We cannot agree to this doctrine. The new trial proceeds de novo and as though the action had never before been tried. (Sticht v. Buffalo Cereal Company, 195 N. Y. 74, 75.)
As to the sufficiency of plaintiff’s proof to present a question of fact for the jury, we agree with the City Court and the Special Term, whose conclusions are here for review. We base our conclusion upon the fact that the given name, signed to the check and written into the notary’s certificate, is so dissimilar to the given name of the depositor, this plaintiff, that we regard that fact alone as sufficient to require the submission to the jury of the question of care by the bank in making this payment. But because of the fact that the question so presented is so close upon the evidence, we feel compelled to again reverse this case, for error found in the charge.
The court was asked to charge the jury that the burden of proving negligence and want of care on the part of the bank was upon the plaintiff. This the court declined to do, and to such refusal proper exception was taken. Such ruling was erroneous. The action was, in form, for breach of contract, although the real issue was one of negligence. The proof of the breach of contract was, no doubt, sufficient to put the defendant to its proof, as a prima facie case was then made out. But when the proof was in, by which the defendant claimed to have excused the breach by establishing due care upon its part, then the burden was still upon the plaintiff of showing that the payment to Helen Kaminski was negligently made. It is only where a presumption of law arises upon the plaintiff’s proof sufficient to sustain a recovery that the burden shifts from the plaintiff to the defendant. When the presumption to be indulged in is one of fact then the burden does not shift, although the defendant is put to his proof, and when the *699defense is in then the burden still remains with the plaintiff to maintain the issue. (Banker v. Banker, 63 N. Y. 409; Kay v. Metropolitan Street R. Co., 163 id. 447.)
I see no distinction in principle between this case and those cases brought by passengers against common carriers to recover for injuries received in transit. Those latter cases are primarily for breach of the contract for safe carriage, and proof, of the contract and of its breach makes a prima facie case of negligence. This is sufficient to put the defendant to its proof, but when the evidence is all in then the burden is still upon the plaintiff of showing lack of care. That class of cases and the application of this rule are well illustrated by the case of Kay v. Metropolitan Street R. Co. (supra).
The judgment should be reversed and a new trial ordered in the City Court, with costs to abide the event.
Eobson, J., concurred.
Judgment affirmed, with costs.