148 Misc. 181 | City of New York Municipal Court | 1933
This action was brought by the above-named administrator to recover of the defendant the sum of $1,259.67, the amount on deposit to the credit of the decedent. As a first, separate and distinct defense, the defendant, in its answer, alleges: (1) That repayment of its deposits is subject to the provisions of the Banking Law of the State of New York; that, pursuant to such provisions, the defendant adopted certain by-laws and regulations governing the repayment of deposits, and that, among such provisions, is .the following: “ but no person shall have the right to demand any part of his principal or interest without producing the original pass book.” (2) Upon information and belief that the deposit book herein was, at the time of the commencement of this action, in the possession of a brother of the decedent, one Stephen Kovacs, who resides and remains in Jugoslavia, but whose address is unknown to the defendant, and, upon information and belief, that the said Stephen Kovacs has or claims to have title to or the right to collect the balance of the said deposit and the accrued interest thereon and has refused and still refuses to surrender possession of the said deposit book to the plaintiff herein.
On the trial no effort was made by the defendant to establish any of the allegations of its answer concerning Stephen Kovacs. It offered in evidence a letter to its attorney, which recites that on January 11,1933, a Mr. Frank Korpitsch, of New York city, called at the bank and represented himself “ as a friend ” and was accompanied by a lady who stated that she was a daughter of Rose Grill. These people also declared that the decedent had died abroad, and that the pass book was in the possession of Stephen Kovacs, a brother of the decedent. The defendant also submitted a letter to plaintiff’s attorney, which states, among other things: “ Under the circumstances, the Institution must respectfully decline to make any payment on the above account, save on the production of the deposit book and upon proper legal assurance, by court decision, or otherwise, that the person seeking to withdraw the money is entitled thereto ”
In these circumstances, it seems to me that the defendant’s mere quiescence is not sufficient to defeat the plaintiff’s recovery. Upon the death of the decedent the defendant became indebted to her estate in the amount of the deposit. In this action, which is by her administrator to recover such deposit, the pass book, so far at least as this plaintiff is concerned, being lost, the complaint, which alleges the appointment and qualification of plaintiff as administrator, the facts concerning the deposit, his demand for the money represented
Plaintiff testified that his wife, the decedent, had been in Jugoslavia for the past six months; that he had seen the bank book six months ago in his home here; that he did not know whether his wife had taken the bank book with her to Jugoslavia or had left it at home here; that he had searched for the book in his home but could not find it; that his wife’s mother had sent him a letter telling him that his wife had died in Jugoslavia; that his mother-in-law had said nothing in her letter about the bank book, and that he had not written to her or to any one else in Jugoslavia upon that subject. Plaintiff also testified that he had been married to the decedent twenty-three years, and had one child, a daughter, Rose, who lives with him.
At bar the defendant made no claim that it was dissatisfied with the search the plaintiff had made for the missing pass book. It placed its refusal to repay the amount deposited solely upon the ground that the book had not been produced.
In Meighan v. Emigrant Industrial Savings Bank (168 App. Div. 542, 546; affd., 222 N. Y. 578) it appears that the depositor had removed to Dublin, Ireland, with his wife, and, while confined in an insane asylum, his wife obtained the pass book, together with the proceeds of a check which the depositor had drawn, and departed for parts unknown to him, and he was subsequently unable to ascertain her whereabouts. At the trial of the action brought by the depositor against the bank for the payment to him of the amount deposited by him, the defendant’s only ground for its refusal to make the payment was the plaintiff’s non-production of the pass book. The court, Hotchkiss, J., writing the prevailing opinion in affirmance of the judgment in plaintiff’s favor, said: “ If the defendant was dissatisfied with the sufficiency of the attempts plaintiff had made to get possession of the book, it should have said so, and, although I do not mean to suggest that it would then have been plaintiff’s duty to have pursued any further search, I think that, defendant having failed to make any objection on the ground of insufficient search at the time when demand was made upon it and having apparently placed its refusal on the sole ground that the book was not produced and was in possession of plaintiff’s wife, it is in no position now to claim that plaintiff’s search for his wife was not as thorough as it might have been.”
Payment by the defendant to any person other than the plaintiff, who is the administrator of the deceased depositor, would be made to such person at the defendant’s peril. (Mahon v. South Brooklyn Sav. Inst., 175 N. Y. 69.) In the case just cited, which was
Verdict directed for plaintiff in the sum of $1,259.67, with interest thereon from the 9th day of February, 1933, without costs. Ten days’ stay from service of notice of entry of judgment.