Hardin, P. J.:
On the second day of the hearing before the referee the defendant “ asked to amend his answer by setting up a general denial.” Caso was then adjourned, and the defendant moved to have this amended answer allowed, or be allowed to serve it. Thereupon the plaintiff objected on the ground that it set up a new defense and that the referee had- no power to allow it, and further, that the amendment would change the position of parties. Thereupon the referee allowed the amendment, and the plaintiff took an exception.
In considering this exception it must be borne in mind that the original answer to the complaint, which demanded an accounting, contained averments to the effect that the defendant had paid up all the moneys it had received from Olive A. Wilcox, or David J. Wilcox as her agent, or otherwise, when she made the complaint. Such averments were repeated in the amended answer, and it also-contained denials of any indebtedness on the part of the defendant.
Section 1018 of the Code of Civil Procedure, provides, viz.: “ Hpon the trial of an issue of fact the referee exercises also the same power, as the court to allow amendments to the summons or to the pleadings.” The effect of this provision is to give to the referee before whom an issue of fact is being tried the same power as the court possesses in respect to amendments.
[301] The section from Which we have quoted confers the power upon a referee to allow an amendment, such as was allowed in this case. (Knapp v. Fowler, 26 Hun, 200.) We are of the opinion that the referee did not exceed his power or abuse his discretion in the premises, and that there is no force in the exception taken to his ruling. (Knapp v. Fowler, supra ; Peyser v. Wendt, 87 N. Y., 322.)
The case of Bockes v. Lansing (74 N. Y., 437), referred to by the appellant’s counsel is unlike the one before us. That was a case where the court held that the referee had no power to change a cause of action from “ one for equitable relief to one in ejectment.” If such an amendment had been made the cause would have been triable by a jury and not by a referee.
In Conway v. Mayor (8 Daly, 306) it was held that the court upon the trial has power to amend the complaint by striking out an admission contained therein.
In Howard v. Johnson (82 N. Y., 271) the defendant was allowed to amend his answer on the trial by setting up an overpayment to the plaintiff on the contract in suit, and demanding judgment for the amount of the same.
Joslyn v. Joslyn (9 Hun, 388), cited by the appellant’s counsel, Is inapplicable to the question now before us. It is a case which -arose and was decided under section 173 of the old Code, and it was ■there held that the referee did not possess the power to allow a ■complaint to be amended upon the trial so as “ to convert the action for use and occupation” by one tenant in common “into the action for an account for money had and received authorized by the Revised Statutes.”
It is claimed by the appellant that the referee erred in allowing Dawson, the treasurer of the defendant, who was called as a witness, to produce the bank ledger and state what the account contained therein respecting the transactions referred to in the pleadings in this case. We think the evidence was entirely competent as bearing upon the question of the manner in which the accounts were kept, and for the purpose of ascertaining the several items thereof and the dates when moneys had been received and disbursed by the defendant.
The real question between the parties was not as to the amount •of money received by the defendant or the amount of money dis[302] bursed by it. It was whether the disbursement by the defendant was binding upon plaintiff’s assignor. The case is, therefore, different from Ocean National Bank v. Carll (55 N. Y., 440). In White v. Ambler (8 N. Y., 170) the boohs of the bank were relied upon as evidence that the account of the defendant was overdrawn» That case differs from the one before us.
We are of the opinion that there was evidence warranting the referee in finding that David J. Wilcox was the agent of his wife Olive, and that she allowed the bank to act in the faith that he was her agent, and that she ratified numerous acts performed by him in the course of such agency, and that she and her assignee were concluded from disputing his authority to receive the moneys from the bank. Ilis wife received and used some of the moneys that came from the bank through his hands. She had possession of the passbook after it contained numerous entries of moneys drawn by him as her agent and entered in the pass-book.
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Hardin, P. J.:
On the second day of the hearing before the referee the defendant “ asked to amend his answer by setting up a general denial.” Caso was then adjourned, and the defendant moved to have this amended answer allowed, or be allowed to serve it. Thereupon the plaintiff objected on the ground that it set up a new defense and that the referee had- no power to allow it, and further, that the amendment would change the position of parties. Thereupon the referee allowed the amendment, and the plaintiff took an exception.
In considering this exception it must be borne in mind that the original answer to the complaint, which demanded an accounting, contained averments to the effect that the defendant had paid up all the moneys it had received from Olive A. Wilcox, or David J. Wilcox as her agent, or otherwise, when she made the complaint. Such averments were repeated in the amended answer, and it also-contained denials of any indebtedness on the part of the defendant.
Section 1018 of the Code of Civil Procedure, provides, viz.: “ Hpon the trial of an issue of fact the referee exercises also the same power, as the court to allow amendments to the summons or to the pleadings.” The effect of this provision is to give to the referee before whom an issue of fact is being tried the same power as the court possesses in respect to amendments.
[301] The section from Which we have quoted confers the power upon a referee to allow an amendment, such as was allowed in this case. (Knapp v. Fowler, 26 Hun, 200.) We are of the opinion that the referee did not exceed his power or abuse his discretion in the premises, and that there is no force in the exception taken to his ruling. (Knapp v. Fowler, supra ; Peyser v. Wendt, 87 N. Y., 322.)
The case of Bockes v. Lansing (74 N. Y., 437), referred to by the appellant’s counsel is unlike the one before us. That was a case where the court held that the referee had no power to change a cause of action from “ one for equitable relief to one in ejectment.” If such an amendment had been made the cause would have been triable by a jury and not by a referee.
In Conway v. Mayor (8 Daly, 306) it was held that the court upon the trial has power to amend the complaint by striking out an admission contained therein.
In Howard v. Johnson (82 N. Y., 271) the defendant was allowed to amend his answer on the trial by setting up an overpayment to the plaintiff on the contract in suit, and demanding judgment for the amount of the same.
Joslyn v. Joslyn (9 Hun, 388), cited by the appellant’s counsel, Is inapplicable to the question now before us. It is a case which -arose and was decided under section 173 of the old Code, and it was ■there held that the referee did not possess the power to allow a ■complaint to be amended upon the trial so as “ to convert the action for use and occupation” by one tenant in common “into the action for an account for money had and received authorized by the Revised Statutes.”
It is claimed by the appellant that the referee erred in allowing Dawson, the treasurer of the defendant, who was called as a witness, to produce the bank ledger and state what the account contained therein respecting the transactions referred to in the pleadings in this case. We think the evidence was entirely competent as bearing upon the question of the manner in which the accounts were kept, and for the purpose of ascertaining the several items thereof and the dates when moneys had been received and disbursed by the defendant.
The real question between the parties was not as to the amount •of money received by the defendant or the amount of money dis[302] bursed by it. It was whether the disbursement by the defendant was binding upon plaintiff’s assignor. The case is, therefore, different from Ocean National Bank v. Carll (55 N. Y., 440). In White v. Ambler (8 N. Y., 170) the boohs of the bank were relied upon as evidence that the account of the defendant was overdrawn» That case differs from the one before us.
We are of the opinion that there was evidence warranting the referee in finding that David J. Wilcox was the agent of his wife Olive, and that she allowed the bank to act in the faith that he was her agent, and that she ratified numerous acts performed by him in the course of such agency, and that she and her assignee were concluded from disputing his authority to receive the moneys from the bank. Ilis wife received and used some of the moneys that came from the bank through his hands. She had possession of the passbook after it contained numerous entries of moneys drawn by him as her agent and entered in the pass-book.
We think, therefore, the referee was warranted in concluding upon the evidence that there was an authority on the part of David J. Wilcox to withdraw the moneys from the defendant as the agent of his wife. Besides, when the plaintiff’s assignor received the passbook among the by-laws printed therein was the following, viz.: “ The treasurer will endeavor to prevent frauds, and all payments made to persons producing the pass-book shall be valid payments and shall discharge the bank from any further liabilities. No depositor shall be entitled to withdraw any principal or interest without producing the original pass-book and having the amount entered therein.” This by-law became a part of the contract between the depositor and the bank, and the depositor was chargeable with notice thereof. Whether or not the defendant had been guilty of negligence in the premises, whether or not it had used “ endeavor to prevent frauds ” to the extent required in the by-law from which we have quoted, were questions of fact for the referee upon all the evidence bearing upon these questions. His finding is favorable to the defendant. Such questions were eminently' questions of fact for the judgment of the referee upon a careful consideration of all the circumstances and testimony disclosed. His finding seems tobe in accordance with the weight of evidence upon that subject. We ought, therefore, to accept it. [303] It comes, therefore, to this: that the defendant paid the moneys, having used this endeavor to prevent frauds, and having been guilty of no negligence in the premises. (Allen v. Williamsburgh Savings Bank, 69 N. Y., 314.) In that case the payment was not upheld under the by-law, for the reason that there were some circumstances which the court thought were such as would “ necessarily excite suspicion and inquiry,” and in that ease the jury found, under the conditions of the by-law, that the defendant had not discharged its full duty, and, therefore, the by-law did not stand as a ¡protection to the bank. Near the close of Judge Folger’s opinion in that case, he states the doctrines which we deem eminently applicable to the case now in hand, and says, viz.: “ We hold that, in the absence of any rules assented to by its customers, a savings bank is to be governed by the same legal principles which apply to other moneyed institutions. When it has prescribed rules, and its depositor has assented to them, they are the agreement, and each party must keep it to preserve rights against the other. The extent of the duty which the savings bank is under will in some degree be measured by the strictness or extent of the rules it has put upon itself. Ordinarily, it is bound to the exercise of reasonable care and diligence, which will be a question of law or of fact, as the proofs are conclusive and undisputed or debatable and conflicting.” The latter case was approved, and the doctrine which we have quoted therefrom restated in Boone v. The Citizens' Savings Bank (84 N. Y., 83).
In chapter 371 of the Laws of 1875, providing for the organization of savings banks and the administration of their affairs, authority is given to the board of trustees to prescrme such regulations in respect to the repayment of deposits as the board of trustees shall deem advisable, and for the printing of the same in “ pass-books or other evidence of deposit furnished by the corporation,” and it is therein provided that such regulations “ shall be evidence between the corporation and the depositors holding the same of the terms upon which the deposits therein acknowledged are made.”
In The People v. The Third Avenue Savings Bank (98 N. Y. 663) it was again held that where a payment has been made by a savings bank, with due care and diligence, to the one presenting the deposit book, such payment being made in pursuance of the by-laws [304] and regulations under which the deposit was received, that it was effectual, citing with approbation Appleby v. Erie County Savings Bank (62 N. Y., 12) and Allen v. Williamsburg Savings Bank (69 id., 314).
We are of the opinion that the referee disposed of the issues properly, and that the exceptions to his rulings in respect to the admission and rejection of evidence, present no prejudicial errors. (See Code of Civ. Pro., § 1003.)
The judgment should be affirmed, with costs.
Boardman, J.:
The pass-book on which the moneys were credited having been issued to “ Olive A. Wilcox, David J. Wilcox, agent,” to the knowledge of Olive it was a recognition of David J. Wilcox’s authority to draw the funds from the bank as agent, and such authority would continue until the form of the account was changed or the bank was notified that his agency was ended, or that his checks as agent should not be honored. I concur in the affirmance of the judgment.
Follett, J., concurred.
Judgment affirmed, with costs.