■ The facts of this cáse are as follows:
The plaintiff between August 21, 1886, and January 1, 1890, ■deposited in the bank of the defendants the sum of $1,259. On January 20, 1890, his deposit account together with interest stood at the sum of $1,310.84. ■ '
The plaintiff withdrew from the said account the following ' sums:
On March 30, 1887, the sum of .'............... $5 00
On March 28, 1888, the sum of.............'..... 40 00
On September 15, 18-88, the sum of................. 15 00
On September 28, 1888, the sum of.............'. ;• ’ - 60 00
On April 9, 1888, the sum of-.............,...... 30 00
On August 14, .1888) the sum- of................. ■' 80 00
On November 11, 1889, the sum of. . ............: 40 00
On November 18, 1889, the sum of.............. ■ 50 00
. On January 7, 1890, the sum of.'. ................ 10 00
$330 00
On. January 20, 1890, the sum of.....:.......¡. 980 84
Making in all the sum of.......• '•••........ $1)310 84
The plaintiff did not draw the said $9$0.84, but presumably one Feinsohn, who slept with plaintiff in the same room, stole plaintiff^ bank-book from a bureau drawer which had been locked, and presented the bank-book to the bank and 'drew the money.
.The evidence further established that the said bank paid plaintiff the said sum of $330 in nine separate payments (in small amounts); that the last payment of January 20, 1890, Was made *59by the bank in the sum of $980.84, was made in one lump sum, and withdrew the whole deposit; that the bank did not require any identification of the person presenting the bank-book and requesting the payment of the total deposit; nor did they require the enforcement of their rule, to wit:
“No person shall have the right to withdraw 'any part of the amount that may be to his credit, unless he has given ninety days previous notice to the bank of the amount which he wishes to withdraw.”
Nor did they send to the plaintiff’s residence at 101 Orchard street, about five blocks from the bank’s office. The plaintiff had not left any signature of his at the bank, he being unable to write, and he evidenced his signature at the bank by a mark.
There appears to be no disputed facts in this case and, therefore, a question of law only is presented for the determination of' the court.
The defendants rely upon the three following rules, which are printed in the pass-book, and which they claim constitute a contract between themselves and their depositors; which rules are printed in the English, French and German languages.
The rules are as follows:
“ First.— Every person on becoming a depositor with this bank shall hereby consent and agree to be governed by the by-laws, rules and regulations of the bank.
“ Second.— All deposits and all withdrawals will be.entered in a book given to the depositor on making- his first deposit, which shall he the voucher of the depositor and the evidence of his property in the institution, and the presentation of the book shall be sufficient authority to the bank to make any payment to the hearer thereof,
“ Third.— All payments to persons producing the pass-book issued by the bank shall be valid payments to discharge the bank.”
But the plaintiff testified that he could not read nor write, and there was no evidence that his attention was called to the said rules by any one. 1
There being no conflict of evidence ■ or disputed facts in the case, it presents a question of law only for the determination of the court. See Allen v. Williamsburgh Savings Bank, 69 N. Y. 314, 322.Z
The rule of law is, that when there is no conflict of evidence and no disputed facts in the case, or the evidence in conflict is of *60such a nature that if it was submitted to a jury and that jury found one way or another thereon, it would be the duty of the court to set aside the verdict of the jury as against the weight of evidence, then a question- of law is presented to. the court for its determination. See Hudson v. Rome, W. & O. R. R. Co., 145 N. Y. 408, 412 and 413.
A savings bank is bound to exercise care and prudence in the execution of their trust in the same degree that men of -common prudence, ordinarily exercise in their own affairs.. The rule prescribed by a savings bank for its protection in the payment of. deposits does not dispense with the exercise of ordinary care upon-the part of its officers. See Hun v. Cary, 82 N. Y. 71 ; Appleby v. Erie Co. Savings Bank, 62 id. 12 ; Gearns v. Bowery Savings Bank, 135 id. 557.
Erom the undisputed facts in evidence in this case and the inferences which I draw from those facts, it is my opinion that the defendants, did riot exercise ordinary care in making the payment of $980.84, and that the trial judge could and should have directed a verdict for the plaintiff. Instead, however, he submitted the question of care to the jury, who found in favor of the plaintiff. This was favorable to defendants, because it gave them another chance of success. It certainly did not injure them. ■
It follows that the defendants’ motion to dismiss the plaintiff’s complaint and to direct a verdict for defendants was properly denied. The charge of the trial judge was proper and no exception had been taken to any part thereof. •
The allowance of the fourth, seventh, eighth, ninth and-tenth of plaintiff’s requests to charge and the refusal of the third, fourth, fifth and sixth of defendants’ requests to- charge was proper. - ' Furthermore the defendants pleaded payment -to the plaintiff. This was an affirmative defense and the burden was on him to establish that defense by preponderance of evidence.
Ho error having been committed in the trial, of this case to the injury of the defendants, the judgment is affirmed, with costs.
Conlan, J., concurs.
judgment affirmed, with costs.