Burroughs. Fosteran.

I have here noticed the leading cases to which our attention has been called as supporting the appellants' position. A brief examination, however, of a few cases to which I will now call attention will, I think, be sufficient to establish the proposition that a personal judgment may be rendered although the lien fail.

Glacius v. Black (50 N. Y. 145), directly involved the question under examination.

The appeal was from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment in favor of the plaintiff upon the report of a referee, and the action was upon a claim filed under the mechanic's lien law. The plaintiffs recovered personal judgment.

The judgment below was reversed upon the ground that the referee erred in regarding the acceptance of work by the architect as conclusive upon the question of performance of the contract.

At the close of his opinion, the chief justice says, "The point is made by the appellant that the judgment should be reversed without a new trial, claiming that the lien has expired, and no personal judgment can be rendered against the defendant. This position is not tenable. If the lien has expired, the action can still be prosecuted as a personal action,”-thus directly reversing the cases above cited (Grant . Vandercook, Donnelly . Libbey, and Titus v. Opie).

Although decided in 1872, Glacius v. Black does not seem to have been brought to the notice of the referee who decided Kelsey v. Rourke.

On a re-trial of Glacius v. Black, personal judgment was recovered against the defendants, no lien being demanded, and the judgment affirmed on appeal by the supreme court at general term (4 Hun, 91).

The referee in Kelsey v. Rourke clearly mistook the effect of the decision in Benton v. Wickwire, 54 N. Y. 228. This case arose under a lien act (sec. 20, chap. 402,

Burroughs v. Fosteran.

Laws 1854), which provided that if judgment was recovered within a year it should be a lien, and on appeal the commissioners held that the judgment not having been recovered within the year, the lien was discharged; that is all that was decided. Commissioner

REYNOLDS, it is true, did say, "It is claimed, however, that if the proceedings to enforce the lien failed a personal judgment should have been ordered against the defendant. I am unable to see how that could have been properly done. No such question appears to have been made at the trial, and it is not now before us." This expression of opinion, however, on a question not before the court, is not to be regarded as authority.

In Moran v. Chase, 52 N. Y. 346, nothing more was decided than that the personal judgment entered against the owner was not warranted by the report of the referee. Judge RAPALLO adding "that it did not seem to be warranted by the statute." The doubt was suggested to the learned judge, probably, by the fact that the language of the section, in terms, refers only to a personal judgment against the contractor or sub-contractor.

But in Hallahan v. Herbert, 57 N. Y. 417, the commission of appeals having before it the precise question as to which a doubt was suggested by Judge RAPALLO, held that when the owner was also the contractor, a personal judgment might be had against him; the court observing that the object, as well as the clear intent of the section, was to save the necessity of two actions, one for the enforcement of the lien against the land of the owner, and another for the recovery of the debt from the party personally liable for it.

Hallahan v. Herbert arose under the New York lien act of 1851, as amended by Laws of 1855, chap. 404,-section 5 of which is in the same words as section 13 of the act now under review.

I have thus examined all the leading cases on which

Allen v. Williamsburgh Savings Bank.

the appellants rely. It will be found that they do not sustain their position, or when they do, their authority has been expressly overruled.

Glacius v. Black is still undisputed authority upon the question of personal liability when even the right to the lien has failed.

The judgment appealed from should be affirmed, with costs.

All the other judges concurred.

ALLEN v. WILLIAMSBURGH SAVINGS BANK.

City Court of Brooklyn; General Term, April, 1876.

AGENT.-HUSBAND AND WIFE.-SAVINGS BANK'S LIABILITY ON FORGED ORDER.

A wife is not presumed to be her husband's agent for the purpose of drawing his money from a savings bank.

A by-law of a savings bank, requiring its "best efforts" to avoid mispayments, calls for more than ordinary care and diligence.

If it did not, it would not be error to instruct the jury in the words of the by-law, and refuse to instruct them in the words of the legal equivalent.

Appeal by defendants from an order denying a new trial and from a judgment.

This action was brought by Isaac Allen against the Williamsburgh Savings Bank, to recover an alleged balance due the plaintiff as depositor of the defendants.

Anna Allen, the former wife of the plaintiff, on June 12, 1862, opened an account with the defendants, and subscribed her name to the signature book. In

Allen v. Williamsburgh Savings Bank.

March, 1863, this account was made payable to the plaintiff, and he also subscribed his name to the signature book, and thereby agreed to be governed by the by-laws and regulations of the defendants.

When Anna Allen opened her account she received from the defendants a bank book containing a credit for her deposit, and also extracts from the by-laws of the bank, regulating deposits and drafts, among which were the following, viz:

"All deposits shall be regularly entered in the books of the bank, and also in a book to be furnished to the depositor, which shall be kept by him or her as a voucher for his or her deposits."

"Drafts may be made personally or by the order in writing of the depositor (if the bank have the signature of the party on their signature book), but no person shall have the right to demand any part of his or her principal or interest without producing his or her bank book, that such payments may be entered therein."

"The bank will use its best efforts to prevent frauds, but all payments made to persons producing the deposit book shall be deemed good and valid payments to depositors respectively."

Anna Allen died in 1869 and the plaintiff married Martha Allen about a year afterwards. Since that time the latter had been in the habit of taking the book to the bank and making deposits for the plaintiff. On October 14, 1874, without plaintiff's knowledge, she obtained the deposit book from the trunk in which it was locked, and took it to the bank for the purpose of drawing $2,850. The signature clerk, who had charge of all applications for drafts, filled out for her a draft for that amount and gave it to her for the purpose of getting plaintiff's signature. She returned the next day, and presented the draft with plaintiff's name signed thereto, and with the book for payment.

Allen. Williamsburgh Savings Bank.

The signature clerk compared the signature with that of plaintiff on the signature book; found it to resemble that thereon; and certified the correctness thereof to the paying teller, who paid her the money and entered the payment on the bank book. The plaintiff testified that he did not sign the check, but that the signature resembled his name "but not exactly as I write it." The dispute between the parties was in reference to this payment to plaintiff's wife, which he claimed was made on a forged draft.

When the evidence was closed the defendant's counsel made several requests to the judge to charge, which were refused, and which sufficiently appear in the opinion.

The jury found a verdict for the plaintiff for the full amount.

The defendants appealed.

S. M. & D. E. Meeker, for appellants.-I. The bylaws and regulations, assented to by plaintiff, formed part of the contract between the parties (Schoenwald v. Metropolitan Savings Bank, 57 N. Y. 418; Appleby v. Erie County Savings Bank, 62 N. Y. 12).

II. Defendants having paid the amount in dispute according to the by-laws and regulations, the payment should be binding upon the plaintiff.

III. The judge should have directed the jury to credit the defendants with that payment, if they exercised ordinary care and diligence to ascertain whether the order was signed by the plaintiff and paid the same in good faith to the person presenting the order and bank book.

IV. The verdict is against the weight of evidence.

D. P. Barnard (A. & J. Z. Lott, attorneys), for respondent.

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