The plaintiff depositor sues the savings bank to recover the balance of his deposit with the bank, which defends on the ground that it had paid such deposit to a person who had presented the pass-book and satisfactorily had answered all of the questions required by the rules of the bank, and the information given by plaintiff when he opened the account. The plaintiff, on a former trial of this case, obtained judgment on a verdict in his favor, which judgment met reversal at Appellate Term of the Supreme Court and the learned justice then writing succinctly and clearly states the law of this state as applicable to an action of this character. 17 Misc. Rep. 574. The proof upon this second trial so.far changed the conditions of the case as to have required the submission to the jury of the disputed question of fact as to whether the bank had observed ordinary care in paying plaintiff’s deposit to a person other than plaintiff who had presented .the pass-book and made correct answers to the questions put to and answered by plaintiff when he opened his account. The proof on this trial would support a finding by the jury that the hank officer who made the payment knew or should have known, if he was an ordinarily prudent man, that the person to whom he paid the deposit was not the plaintiff, the depositor and owner of the bank-book, for plaintiff and his brother both testified that when plaintiff called at the bank on the day following the payment, the bank teller who had made the payment said to him when he came into the hank, “ Hello, Geitelsohn,” and “Hello, Geitelsohn; what is the trouble?” and plaintiff testified that he had deposited with or drawn money from this officer about twenty-five times; that this officer always knew his name and had called him by name before the morning on which the bank-book was stolen. Of course, this was contradicted by the officer, hut it was proper to submit to the jury the question aS to whether the officer had observed ordinary prudence in making the payment to a person other than the depositor himself, and the jury’s finding against defendant’s contention will not he disturbed. There are *424nineteen exceptions by defendant to the charge and refusals to charge, but time will not permit a discussion of them; however, suffice it to say that the charge fairly stated the law and, presented the case to the jury.
Judgment and order affirmed, with costs.
ScHuqnpuAN, J., concurs.,
Judgment and order affirmed,- with costs.