[After stating the facts as above.] — The motion to dismiss the complaint should have been granted. It must be deemed established by the proofs, that the disputed payments were made to a person who had possession of the plaintiff’s bank-book. The rules printed in the book are, when properly made known to the depositor, a part of the contract between him and the institution. One of these, numbered ten, in substance provides that “no person shall have the right to demand any part of his principal or interest without producing the original book,' that the payments may be entered therein,” and further, that “ all payments made to persons producing the deposit-book, shall be deemed good and valid payments to depositors respectively.” These regulations do not absolve the bank officials from the exercise of ordinary care, when making payment upon the faith of the depositor’s book. Under this principle, however, it is needful for the plaintiff, upon a trial involving the validity of such payments, to give proof of facts tending to show a failure to exercise reasonable care and prudence in disbursing the money. If, for instance, the signature of the receiving person should present a marked and noticeable dissimilarity to that of the depositor upon the bank’s book, the failure to discover it would evidence negligence to be passed upon by a jury. In the case at bar, the record contains no proof of any such facts, and none upon which negligence by the bank officials could possibly be predicated (Shoenwald v. Met. Savings Bank, 57 N. Y. 418; Appleby v. Erie County Savings Bank, 62 N. Y. 12). There was no question, therefore, for submission to the jury, and the motion to dismiss should have been granted.
The judgment must be reversed, and a new trial granted, costs to abide the event.
Oh arles P. Daly, Oh. J., and Yah Bbuht, J., concurred.
Judgment reversed and new trial granted, with costs to abide event.