(concurring in part). The plaintiff on November 3, 1913, presented to the bank his deposit book and a draft for $822.64.
*169The defendant refused to pay the draft, claiming that the plaintiff did not have that amount on deposit because on June sixteenth the bank had paid out $500 to some person presenting the plaintiff’s bank book and an order for the sum of $500 which purported to be signed by the plaintiff.
For the purposes of this appeal we must assume that the bank book was stolen from the plaintiff’s possession and plaintiff’s name signed to the order. It appears further that the by-laws of the bank contain a regulation that “ Depositors alone shall be responsible for the safe guarding 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 payment to depositors respectively and shall fully discharge the bank therefrom.” The plaintiff assented to this regulation and is bound thereby. In the case of the Appleby v. Erie County Savings Bank, 62 N. Y. 12, the court stated: “ It is necessary and proper that rules and regulations shall be prescribed for the payment of money deposited in savings banks, and for the protection of the banks in making payments, and if such rules are within the restrictions of the act, and are reasonable, they should be upheld. They constitute, if properly communicated and assented to by the depositor, the contract between the parties. But these rules do not dispense with the exercise of ordinary care on the part of the officers of the bank.”
This statement of the law has been frequently cited with approval and undoubtedly represents the established law of this state. It follows that since the defendant has made such a payment of $500 of plaintiff’s account as the plaintiff agreed should constitute a good and valid payment to him, the plaintiff cannot *170recover this amount from the hank if the hank has exercised due care in making the payment.
The paying teller of the bank is dead and consequently the bank is not in a position to produce testimony of the exact care used by him in making the payment. Obviously, however, wrong-doing or negligence is never presumed without some evidence. The evidence which the plaintiff claims established such negligence is the difference between the forged signature on the draft of $500 and the plaintiff’s signature on file with the bank. In Appleby v. Erie County Savings Bank, supra, the court said in considering a similar claim: “ If the two signatures were so
dissimilar as when compared the discrepancy would be easily and readily discovered by a person competent for the position, then the failure to discover it would be evidence of negligence which should have been passed upon by the jury. It would not be evidence of negligence if the difference was not marked and apparent, or if it would require an actual examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion. ’ ’ In this case there is no doubt but that the forged signature bears a very marked similarity to the true signature, in fact even at the trial the defendant produced several experts who testified that in their opinion it was a genuine signature.
The plaintiff’s expert conceded practically that an ordinary man would not be able to see the difference, but he thought that a bank teller was not “ an ordinary man ” and “ the line quality is so absolutely bad as to attract your attention at once but so far as outline is concerned it does resemble it.”
The mere fact that one expert differing with other experts testifies that the “ line quality ” or difference in slant ‘ ‘ should attract your attention at once ’ ’ does *171not in my opinion raise a real issue of negligence where upon inspection of the signatures themselves the dissimilarity in the signatures appears of such a character, that no negligence can reasonably be predicated upon it.
At the close of the case, both sides moved for the direction of a verdict and the learned trial justice directed a verdict for the plaintiff for the full amount. For the reasons given above I think that this direction was erroneous and that he should have directed a verdict only for the sum of $322.64 with interest.
Judgment should be reduced to that amount, and, as modified, affirmed, with costs to the appellant.