Action by an administrator to recover the
amount of a deposit of his decedent from the savings bank. Tried by the court without a jury. On the 4th of April, 1900, Julia Huf opened a deposit account with the defendant and as evidence thereof received a bank book No. 354,443, in which were printed certain of the by-laws of the bank. She signed her name in the signature book of the bank and also signed an identification card. The signature book which she signed contained the by-laws of defendant then in force. On the 19th of July, 1900, there was filed with defendant *518a duly executed power of" attorney acknowledged by Julia Huf July 17, 1900, in which she “ made, constituted, and appointed” George Thoma her true and lawful attorney “ for me and in my place and stead, and to my use, to deposit in any bank or banks he sees fit, moneys belonging to me, in my possession or under my control, or moneys belonging to me and in the possession of other person or persons, after collecting the same on my behalf. I also give said George Thoma full power and authority to draw on my behalf and for my use any sum or sums of money at any bank or at all banks in which my said funds shall be deposited hereafter or may now be deposited, giving my said attorney full- power to do everything whatsoever requisite and necessary to be done in the premises, as fully as I could do if personally present with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do, or cause to be done, by. virtue hereof.” George Thoma at the time of filing said power of attorney also signed as attorney Mrs. Huf’s identification card. Julia Huf, who was a woman upwards of eighty-five years, died September 14, 1900. Upon that day the amount standing to her credit on the books of the defendant was $2,454.80. On the fifteenth day of September, the day after her death, George Thoma, who was aware of her death, presented to the bank the bank book and an order in writing, signed by himself as attorney, in the sum of $454.80, and was paid said amount. On the eighteenth of September, three days thereafter, he again presented the book and a similar order for $2,000, the entire balance, and the bank paid the same, closing the account. At the time of payment the bank had received no notice of the death of Julia Huf. At the time of the presentation of each draft and the payment thereof the bank, by its officers, made no inquiry whatever as to whether the depositor, Julia Huf, was still alive. The above facts being clearly established, the administrator claims to recover upon the ground that the death of Julia Huf revoked the power of attorney ánd that, therefore, the payment to Thoma was unwarranted and un*519lawful. The hank defends upon the ground, first, that one of its by-laws provides: “ 8. Depositors alone shall be responsible for the safe keeping of their books. And all payments made to persons producing the deposit books, whether with or without an order or letter of attorney, purporting to be signed by the depositor, shall be deemed good and valid payments to depositors respectively and shall fully discharge the institution therefrom;” and, secondly, that this power of attorney was coupled with such an interest in George Thoma that it was not revoked by Julia Huf’s death. As to the first contention, section 6 of defendant’s by-laws provides : “ On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representative.” The holder of a naked power of attorney is not such legal representative — the administrator is. The learned Appellate Division held in Podmore v. South Brooklyn Sav. Inst., 48 App. Div. 218, construing similar provisions: “ That by-law contemplates and was aimed to secure continuous vigilance on the depositor’s part to prevent fraudulent possession of his pass book. It surely was not intended to apply when he was no longer here to guard his pass book. That the contract on that event was to cease at his death is clearly evidenced by the independent by-law providing for the bank’s duty with regard to paying after that event.” See also Farmer v. Manhattan Sav. Inst., 60 Hun, 462. The Podmore case went to the Court of Appeals as Mahon v. South Brooklyn Sav. Inst., 175 N. Y. 69. Evidence was offered and excluded tending to show that the bank exercised due care in making the payment. Said the court: “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 *520this by-law, which is designed to protect the bank in such, a case, must he read in connection with the other by-law, which provides that after the depositor’s death payment must he made ‘ to his or her legal representative.’ This latter by-law is for the protection of the depositor who could no longer protect himself, and, therefore, the bank was hound to see that payment was made to the proper person. Payment to any other person was made at the bank’s peril.” So far as the case at bar is concerned, the bank had on file a plain, simple, power of attorney, which it was hound to know became revoked eo instanti upon the death of Julia Huf. It paid two drafts, comprising the whole account, within three days, upon the strength of that power of attorney, without an inquiry as to whether Julia Huf was alive or dead. It paid at its peril and is bound by its own by-laws to make good to Julia Huf’s legal representative, unless the proof has clearly established that said power was coupled with such an interest in George Thoma as caused it to survive Julia Huf’s death. There is no such clear, strong and convincing proof as would warrant any such finding of fact. The power of attorney certainly contains no suggestion. That was to deposit and to draw for Julia Huf’s use solely. Some oral testimony is offered to show first a-gift. • The evidence falls far short of establishing a gift either in presentí or causa mortis. Again, it is claimed that certain statements made from time to time by decedent as to having masses said for her and to see that she had a nice funeral established such an interest in George Thoma in this fund as made the power irrevocable. I do not think so. The evidence is weak, uncertain and unreliable. I do not believe it. It seems to me that it was a bold attempt on George Thoma’s part to get possession of Julia Huf’s estate for his own purposes by taking advantage of the power of attorney and by concealing the fact of her death from the bank. The bank paid without taking ordinary precaution, and its defense is not made out. Judgment for plaintiff for $2,454.80 principal, and interest at three and one-half per cent to date of demand, $l-63.73, and from June 28, 1902, to date of judgment at six per cent.
*521Defendant may have thirty days’ stay after notice of entry of judgment, and thirty days in which to make a case.
Judgment for plaintiff.