Learned, P. J.:
If there was any conversation at the time of the deposit that the money was to be paid only when Flannagan, Riley and Smith were present, still there is not one word of evidence that this agreement, ■or understanding, was only for the life of Mary Riley. Nor does the learned justice so find. It is mere assumption that her death made any change in that so-called agreement. If Flannagan had no right to draw the money on Mary Riley’s order, unless Patrick H. Riley and Margaret Smith were present, then Patrick H. Riley, ■as her administrator, had no right to demand the money unless the ■others of the three, viz., Flannagan and Smith, were present.
The alleged agreement said nothing as to the person who might draw the money; but only as to the persons who were to be present when it was drawn. And, if any valid agreement of .that land was made, it affected the deposit just as much after Mary Riley’s death as before. So that Patrick H. Riley never made a valid demand.
But, again, the written pass-book, with the regulations therein contained, was the contract between the parties, and the alleged statements to Toole by persons who brought the money did not bind the bank. Toole had no authority to make such a contract as is alleged. No discretionary power was given to him. This is positively proved. But it is found, as a matter of law, by the court that Toole had such apparent power to make the agreement that the bank was bound by its terms. It is true that a principal is bound, not only by the actual authority which he gives an agent, but by such apparent power as the authorized acts of the agent justify third persons in believing him to possess. Now, the authorized acts of Toole were to receive money for the bank from depositors, and to give pass-books therefor. There is no evidence that he had ever made any verbal agreements or promises iu regard to ■deposits, and still less that any such verbal ageements had come to the knowledge of the bank. There was then no evidence of any apparent power in Toole, except his receiving money and giving pass-books therefor and entering the money to the depositor’s [518]*518credit. How did this authorize him, in appearance even, to make this verbal agreement ? On the contrary, the proof was clear that deposits, on any other terms than those of the rules, could only be made by the authority of Mr. Martin, the president. But agreements must be mutual. Can it be claimed if Mary Biley had called at bank the next day with the book and had demanded her money, that the bank could have refused to pay until those three depositors-were present ? Would not the pass-book be the contract, and the only contract between her and the bank ? Could Mary Biley be deprived of her money if any one of those three persons had refused to be present ?
Indeed, it seems of little consequence whether or not the alleged conversation took place, in regard to the presence of the three persons when the money should be drawn out, for this reason. The money was Mary Biley’s. It was deposited in the bank without her khowledge or consent. She was therefore not a party to any agreement as to the manner of drawing it out. Unless, then, the bank.should insist upon the terms of the alleged conversation, she had a right to draw out the money, and the bank had a right to-pay it, as the bank and Mary Biley might choose. The important question, then, is whether Mary Biley did draw out the money. If she did, it matters not to her representative what were the alleged conditions of deposit.
We come then to the matter of the check, or order, signed by Mary Biley. That this check was signed by her is not disputed. It is further found that it was obtained by Flannagan, not fraudulently, but at the suggestion of the overseer of the poor, who refused to assist Mary Biley, after he learned that she had this money; and that the money was obtained for the purpose of supporting her. In fact, $259 was applied to the expenses of her last sickness and her burial. The learned justice finds as a fact that Mary Biley was of unsound mind and did not comprehend the act; and as law that therefore the check or order was not her act. The court does not find that the bank knew she was insane, or of unsound mind, when it paid the check; but that in the statement of the old age of Mary Biley, the want of education, the circumstances of the deposit and the unusual agreement, the bank should have inquired before paying, and that the bank had notice [519]*519which should have put it upon inquiry. Now, it should be observed that according to the testimony of plaintiff’s witnesses the bank was notified that the money might be drawn out, because (as they say) it was not to be drawn out except in the presence of the three persons. Therefore, according to plaintiff’s witnesses, the bank was informed that it could be drawn out in the presence of those three, who should be “ satisfied with the draft.” And as it .could be drawn out only on Mary Riley’s check or order, and as they were to be satisfied with it, the plaintiff’s own witnesses showed that the bank, at the time of the deposit, was notified that it might le drawn out on Mary Riley’s check or order. Hence it is plain that no knowledge of her insanity was given to the bank, and no notice of any facts which should cause a suspicion of her insanity. The learned justice says that knowledge of her age, want of education, etc., should have induced the defendants to inquire as to her mental condition. Her want of education, that is her inability to write, known to the bank, would have thrown suspicion on any writing purporting to be her signature. And the bank properly required the identification of the witness to the check. But we do not think that the old age of a depositor, or her want of education, requires a bank, before paying a check, to ascertain affirmatively that the drawer is sane.
An executed contract, made in the usual course of business and founded upon a valuable consideration, cannot be set aside by one of the parties thereto, nor by his representatives after his death, on the ground of his unsoundness of mind, when he has received the benefit stipulated in the contract, and the other party has no notice of his incapacity and was guilty of no fraud or imposition. (Mut. Life Ins. Co. v. Hunt, 79 N. Y., 541, and cases there cited.) The cases are very numerous on this point. We may notice Molton v. Camroux (4 Ex., 17); Elliot v. Ince (7 DeG., M. & G., 475); Beals v. See (10 Penn., 56); Lancaster Bank v. Moore (78 id., 407); Behrens v. McKenzie (23 Iowa, 333).
No other rule would be tolerable. Especially in the case of a bank having numerous (in this case over 14,000) depositor’s. The bank cannot investigate the sanity of a depositor whenever a check is presented. The plaintiffs err in calling the check a forged check. Of course payment on a forged check is no protection to the bank. [520]*520But payment on the genuine check of an insane person, without notice of the insanity, is a valid payment. (See Howard v. Digby, 2 Cl. & Fin., 634; Drew v. Nunn, L. R., 4 Q. B. Div., 661.)
But, again, there was really no notice to the bank of Mary Riley’s insanity, and no occasion for the bank to inquire. Flannagan, who deposited the money in the first place, and who was himself present at whatever was said at the time of the deposit, was the man who brought the check of Mary Riley to the bank; and who, by indorsing it, vouched for its validity.
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Learned, P. J.:
If there was any conversation at the time of the deposit that the money was to be paid only when Flannagan, Riley and Smith were present, still there is not one word of evidence that this agreement, ■or understanding, was only for the life of Mary Riley. Nor does the learned justice so find. It is mere assumption that her death made any change in that so-called agreement. If Flannagan had no right to draw the money on Mary Riley’s order, unless Patrick H. Riley and Margaret Smith were present, then Patrick H. Riley, ■as her administrator, had no right to demand the money unless the ■others of the three, viz., Flannagan and Smith, were present.
The alleged agreement said nothing as to the person who might draw the money; but only as to the persons who were to be present when it was drawn. And, if any valid agreement of .that land was made, it affected the deposit just as much after Mary Riley’s death as before. So that Patrick H. Riley never made a valid demand.
But, again, the written pass-book, with the regulations therein contained, was the contract between the parties, and the alleged statements to Toole by persons who brought the money did not bind the bank. Toole had no authority to make such a contract as is alleged. No discretionary power was given to him. This is positively proved. But it is found, as a matter of law, by the court that Toole had such apparent power to make the agreement that the bank was bound by its terms. It is true that a principal is bound, not only by the actual authority which he gives an agent, but by such apparent power as the authorized acts of the agent justify third persons in believing him to possess. Now, the authorized acts of Toole were to receive money for the bank from depositors, and to give pass-books therefor. There is no evidence that he had ever made any verbal agreements or promises iu regard to ■deposits, and still less that any such verbal ageements had come to the knowledge of the bank. There was then no evidence of any apparent power in Toole, except his receiving money and giving pass-books therefor and entering the money to the depositor’s [518]*518credit. How did this authorize him, in appearance even, to make this verbal agreement ? On the contrary, the proof was clear that deposits, on any other terms than those of the rules, could only be made by the authority of Mr. Martin, the president. But agreements must be mutual. Can it be claimed if Mary Biley had called at bank the next day with the book and had demanded her money, that the bank could have refused to pay until those three depositors-were present ? Would not the pass-book be the contract, and the only contract between her and the bank ? Could Mary Biley be deprived of her money if any one of those three persons had refused to be present ?
Indeed, it seems of little consequence whether or not the alleged conversation took place, in regard to the presence of the three persons when the money should be drawn out, for this reason. The money was Mary Biley’s. It was deposited in the bank without her khowledge or consent. She was therefore not a party to any agreement as to the manner of drawing it out. Unless, then, the bank.should insist upon the terms of the alleged conversation, she had a right to draw out the money, and the bank had a right to-pay it, as the bank and Mary Biley might choose. The important question, then, is whether Mary Biley did draw out the money. If she did, it matters not to her representative what were the alleged conditions of deposit.
We come then to the matter of the check, or order, signed by Mary Biley. That this check was signed by her is not disputed. It is further found that it was obtained by Flannagan, not fraudulently, but at the suggestion of the overseer of the poor, who refused to assist Mary Biley, after he learned that she had this money; and that the money was obtained for the purpose of supporting her. In fact, $259 was applied to the expenses of her last sickness and her burial. The learned justice finds as a fact that Mary Biley was of unsound mind and did not comprehend the act; and as law that therefore the check or order was not her act. The court does not find that the bank knew she was insane, or of unsound mind, when it paid the check; but that in the statement of the old age of Mary Biley, the want of education, the circumstances of the deposit and the unusual agreement, the bank should have inquired before paying, and that the bank had notice [519]*519which should have put it upon inquiry. Now, it should be observed that according to the testimony of plaintiff’s witnesses the bank was notified that the money might be drawn out, because (as they say) it was not to be drawn out except in the presence of the three persons. Therefore, according to plaintiff’s witnesses, the bank was informed that it could be drawn out in the presence of those three, who should be “ satisfied with the draft.” And as it .could be drawn out only on Mary Riley’s check or order, and as they were to be satisfied with it, the plaintiff’s own witnesses showed that the bank, at the time of the deposit, was notified that it might le drawn out on Mary Riley’s check or order. Hence it is plain that no knowledge of her insanity was given to the bank, and no notice of any facts which should cause a suspicion of her insanity. The learned justice says that knowledge of her age, want of education, etc., should have induced the defendants to inquire as to her mental condition. Her want of education, that is her inability to write, known to the bank, would have thrown suspicion on any writing purporting to be her signature. And the bank properly required the identification of the witness to the check. But we do not think that the old age of a depositor, or her want of education, requires a bank, before paying a check, to ascertain affirmatively that the drawer is sane.
An executed contract, made in the usual course of business and founded upon a valuable consideration, cannot be set aside by one of the parties thereto, nor by his representatives after his death, on the ground of his unsoundness of mind, when he has received the benefit stipulated in the contract, and the other party has no notice of his incapacity and was guilty of no fraud or imposition. (Mut. Life Ins. Co. v. Hunt, 79 N. Y., 541, and cases there cited.) The cases are very numerous on this point. We may notice Molton v. Camroux (4 Ex., 17); Elliot v. Ince (7 DeG., M. & G., 475); Beals v. See (10 Penn., 56); Lancaster Bank v. Moore (78 id., 407); Behrens v. McKenzie (23 Iowa, 333).
No other rule would be tolerable. Especially in the case of a bank having numerous (in this case over 14,000) depositor’s. The bank cannot investigate the sanity of a depositor whenever a check is presented. The plaintiffs err in calling the check a forged check. Of course payment on a forged check is no protection to the bank. [520]*520But payment on the genuine check of an insane person, without notice of the insanity, is a valid payment. (See Howard v. Digby, 2 Cl. & Fin., 634; Drew v. Nunn, L. R., 4 Q. B. Div., 661.)
But, again, there was really no notice to the bank of Mary Riley’s insanity, and no occasion for the bank to inquire. Flannagan, who deposited the money in the first place, and who was himself present at whatever was said at the time of the deposit, was the man who brought the check of Mary Riley to the bank; and who, by indorsing it, vouched for its validity. As is pointed out above, the bank, at the time of the deposit, was in substance in formed that the money might be drawn out; and of course this meant upon Mary Riley’s order. Flannagan then comes, in accordance with this notice, and brings Mary Riley’s check and draws the money. What inquiry should the bank have made? And.we must bear in mind that the degree of inquiry to be made must be proportioned to the circumstances. And that these three persons, if they had desired to prevent the money from being drawn by Mary Riley, could have given such a full and unquestionable notice that the bank would have refused to pay any checks. Plainly enough they did not so intend.
The by-laws of the bank provide that money can be withdrawn on the third Wednesday in January, April, July and October, one month’s previous notice having been given. After the letters of administration had been issued the administrator demanded this money of the bank and the bank refused payment. No reason for the refusal appears to have been given; no previous notice of a month had been given, or is alleged. The learned justice held that, as the bank had unqualifiedly refused to pay, this action was immediately maintainable. It appears that there had been a prior conversation with the president of the bank, in which he stated that the money had been drawn on by Mary Riley; and it appears, also, that the pass-book had been surrendered. We think that these facts are sufficient to show that the bank put its refusal to pay on the previous payment, and may justly be held to have waived the matter of notice.
Still another question remains. As has been stated above, Patrick H. Riley, the administrator, charged Flannagan with having corruptly procured from Mary Riley an order on the bank, and with having, by means of that order, received this money, and [521]*521with having the same in his possession. These facts were admitted before the surrogate in the proceeding against Flannagan ; that is, he admitted that he obtained from the bank $876.75, the proper money of Mary Riley, deceased, and that he was in possession thereof; and an adjudication to that effect was made. To comjael the delivery he was imprisoned under the surrogate’s mandate, made October 17, 1882, and' was, by the surrogate, discharged November 11, 1883. This proceeding was under section 2706 ■et seq. of the Code. By section 2710, as amended, if the person cited answers in writing that he is the owner of the property, the proceeding must be dismissed. As Flannagan ■did not so answer, the proceeding was conclusive between him and the administrator that the money in his possession ■was Mary Riley’s when Flannagan received it from the bank. If it was Mary Riley’s, then it necessarily follows that the bank had paid Mary Riley what it owed her. If Flannagan had obtained the money by fraud from the bank, then he might be liable to the bank for the fraud. But he could not be liable both to the bank and also to Mary Riley, or her representative. And as her representative had obtained a judicial decision against him, deciding, as between them, that this was Mary Riley’s money, this was plainly a ratification by her representative of Flannagan’s act in obtaining the money. The bank, therefore, could in no event recover back the money from Flannagan; because, whether Flannagan obtained it wrongfully or rightfully, Mary Riley’s representative had chosen to ratify his act by a judicial decision, establishing that the money in his hands belonged to her estate.
If her representive had chosen not to ratify his act, but to treat it (as he now seeks to do), as unauthorized, then he should have done what he is now doing, that is, he should have sued to recover the deposit. He had his election to treat Flannagan’s act in either way, viz., to ratify it or to disavow it. He made his election and ratified it. He now seeks to disavow it.
That the present remedy is inconsistent with the proceedings •■against Flannagan is evident. Those proceedings are just as •effectual as a judgment against Flannagan would have been. And it is plain that this plaintiff cannot consistently have a judgment against the bank for the money and against Flannagan for the [522]*522game money also. This is not the case of a specific thing which the plaintiff is endeavoring to recover. It is only a debt which the bank either owes or does not owe. And the bank cannot owe it if Flannagan does.
Where there exists an election between inconsistent remedies the party is confined to the remedy which he first prefers and adopts. The remedies are not concurrent, and the choice between them once made, the right to follow the other is forever gone. (Rodermund v. Clark, 46 N. Y., 354; Sanger v. Wood, 3 Johns. Ch., 416; Borell v. Newell, 3 Daly, 233; Scarf v. Jardine, 7 Appeal Cas., 345; Morris v. Rexford, 18 N.Y., 552; Kennedy v. Thorp, 51 id., 174; Bank of Beloit v. Beale, 34 id., 473.) This doctrine has been so frequently decided that a citation of further authorities can hardly be necessary. If the bank had been the bailee of some specific property of Mary Riley, and had wrongfully delivered that to Flannagan,, then it would not be inconsistent for the bailor to seek to recover the specific article from Flannagan, and to sue the bank for the breach of the bailment; because, the wrong done to the bailor by the bank would have been in the wrongful delivering of the article to Flannagan. But the present case is no bailment. The bank was a debtor to Mary Riley. That the bank should pay certain rríoney to Flannagan was no wrong to her. The bank paid its own money, not her’s to Flannagan. Whether the payment to him discharged the debt to her depends on one of two things, first, that he was authorized to receive it at the time; or, second, that she subsequently ratified his act. If she subsequently ratified it, then she elected to hold Flannagan liable as for money received to her use. This is the election of a remedy entirely inconsistent with an action against the bank as being still her debtor.
For these reasons the judgment should be reversed and a new-trial granted, costs to abide the event.