In concurring with the foregoing opinion of my Brother Putnam, I wish to add a few words. I do not feel confident that when William Clark presented plaintiff’s book to the bank, (defendant,) and the defendant gave a check payable to plaintiff’s order, there was any negligence. The check could not be drawn without plaintiff’s indorsement. The defendant did not make the check payable to William Clark, but to plaintiff. The defendant authorized and requested the Saugerties National Bank to pay the money to the plaintiff. Thus defendant protected the plaintiff against a payment to any other person. And I should be inclined to hold that when a bank-book, with such a by-law therein, was presented by a person other than the depositor, the bank had endeavored to prevent fraud and imposition when it gave a check on a bank of deposit, payable to the depositor’s order. If a check given under such circumstances were shown to be outstanding, and not accounted for, I am not willing to say that the savings bank would not be liable for the amount; for the depositor might have indorsed the check, and it might be remaining in the hand of some third party, in which case the savings bank would be liable thereon as drawer, if the bank of deposit should refuse to pay; and the payment by the bank of deposit would be a charge against the account of the savings bank therein. But in the present case the check is shown to have reached the bank on which it was drawn, to have been presented, and not to have been refused or protested; hence no liability of defendant thereon can arise. The Saugerties National Bank paid the check without the indorsement of the payee; hence such payment did not authorize that bank to charge the amount paid against the defendant, and the defendant has lost nothing. The check was indorsed as follows: “Ellen his Clark, as Authorized, by William X Clark. Witness: Frank Bus-mark sell.” Bussell, then, was simply a witness to the fact that William Clark had affixed his mark to the indorsement. He was not a witness to any authority possessed by William Clark. One who witnesses an instrument executed by an agent does not in any way, by such witnessing, assert or guaranty that the agent is authorized by the principal. He only asserts that the agent signed the instrument. Frank Bussell, who witnessed the signature, does not appear to have been an officer of the defendant. But, even if he were, the act of witnessing signatures could hardly be within the scope of his duty, so that his act would not bind the defendant: and I have already stated that it bound the witness to nothing but the genuineness of William Clark’s mark. The Saugerties National Bank was not misled. It saw that a check to the plaintiff’s order had an indorsement purporting to be made by William Clark as her agent. It was for that bank to determine at its own peril whether he was such agent. It failed to do this. The defendant, therefore, has not paid the sum in question to plaintiff or to any one. The money still remains, so far as appears in this action, to the credit of defendant in the Saugerties National Bank. The plaintiff is entitled to recover; for, as the case appears, the national bank has no right to charge against defendant’s account the money paid on this check.