While disclaiming any expert knowledge of handwriting, I think that the eleven forged drafts are not very uniform and similar in appearance one with another. They contain very marked differences, and these differences increase almost from week to week. The first signatures are extremely illiterate while there is a decided improvement in the handwriting in the last. The first signature contains no capital initial letter; the last few signatures are properly capitalized. It is true, however, that even a layman could determine that all eleven *471forged drafts are signed, either by the same person or by persons attempting to imitate the same handwriting; while the handwriting on the valid drafts is sufficiently different from that on the forged drafts at least to raise a suspicion in the mind of a layman that they were written by another person.
The cashier of the defendant frankly admits that there is a dissimilarity and that he was suspicious about the forged drafts. Under such circumstances it was clearly the duty of the officers to institute an inquiry, and the failure to do so would be negligence for which the bank would be liable. Appleby v. Erie County Sav. Bank, 62 N. Y. 12. The officers of the defendant herein did institute an inquiry and asked the bearer of the suspicious drafts test questions which he answered according to the signature book wherein the plaintiff had placed the correct answers to the test questions. The knowledge of the correct answers to these questions was supposed to be confined to the plaintiff and was certainly confined to the plaintiff and his own intimates. The pass-book contained a rule that, “ although the Bank will endeavor to prevent frauds and impositions, yet all the payments to persons presenting the pass books issued by it shall be valid payments to discharge the bank.” Such a rule imposes a duty upon the bank, but does not call for “ its best efforts.” “ Ordinarily, it is bound to the exercise of reasonable care and diligence, which will be a question of law or of fact, as the proofs are conclusive and undisputed, or debatable and conflicting.” Allen v. Williamsburgh Sav. Bank, 69 N. Y. 314, 322. In the case of Ferguson v. Harlem Sav. Bank, 43 Misc. Rep. 10, 12, this court said: “ The testimony of the officer of the bank who made the payment shows that a few slight irregularities in the signature aroused his suspicion; that he thereupon asked all the test questions requisite for identification • that the person applying for the payment with the pass-book in his possession, and claiming to be the plaintiff, correctly answered each and every one of the test questions, and that thereupon the payment was made. Under these circumstances the defendant had a right to rely upon the appear*472anees thus presented, and to make the payment called for.” The court then held that it was the duty of the court below to direct a verdict. Under the authority of that carefully considered opinion, we are bound to affirm the direction of a verdict in this case, unless the fact that in the one case the suspicion was aroused by “ a few slight irregularities,” while in the other case the suspicion was aroused by a marked dissimilarity, raises such a distinction between the cases that what was certainly a sufficient inquiry in the one case was possibly insufficient in the other. I am quite willing to concede that, where the signatures are so dissimilar that no bank officer would be deceived as to their identity, the bank has not complied with the agreement to endeavor to prevent frauds, even if it has used the test questions and answers. As a matter of law, in such a case it would be negligent to pay moneys upon a palpable forgery. I am also willing to concede that there may be cases where it is a debatable question and, therefore, a question of fact for the jury, whether the dissimilarity is so palpable that no inquiry by test questions is sufficient to satisfy the requirement- that the bank shall use reasonable care to prevent fraud. ¡Nevertheless, such cases are rare. “ * * * the contention of- the respondent that a mere difference in the signatures requires the submission of the case to the jury is not supported by the authorities cited.” Ferguson v. Harlem Sav. Bank, supra, 13.
In this case, while there is a marked difference in the signatures, there is, also, it seems to me, some similarity. Conceding that the similarity' in the signatures is possibly no greater than is usually apparent in the unformed hand-writings of two illiterate persons, it still seems to me that the difference is also no greater than is frequently found in the handwriting of an illiterate person made at different times. The plaintiff was concededly illiterate. He had originally signed the bank’s signature book only with his mark but had thereafter learned to write his own name. His handwriting was naturally unformed; and, while the bank was put upon inquiry by the difference in the signatures on the checks, this difference might reasonably be *473ascribed to an improvement in the plaintiff’s handwriting. It seems to me that, in view of these circumstances and in view of the paying teller’s undisputed testimony that there was some similarity in the signatures; that he compared them with the signature of the plaintiff in the bank’s signature book and that, his suspicions being aroused, he asked the test questions, the conclusion that the bank reasonably complied with its agreement to “endeavor” to. prevent fraud is not debatable.
The judgment and order should be affirmed with costs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.