153 N.Y.S. 312 | N.Y. App. Div. | 1915
Lead Opinion
The defendant does not contend that the provision of the Banicing Law requiring the production of the pass book is an arbitrary condition that must at all hazards be complied with, but if it did, the contention could not be upheld. In Warhus
The judgment and order should be affirmed, with costs.
Dissenting Opinion
The account of the plaintiff was received by the defendant subject to the latter’s by-laws which were printed in the depositor’s book, and which constituted part of the contract between the parties on which the deposit was received. (Warhus v. Bowery Savings Bank, 21 N. Y. 543.) One of these by-laws provided: “ The Bank shall not he liable or called on to make any payment without the presenting of the pass-book at its counter, that the proper entry may be made in it, nor shall it be liable for any deposit unless made at its counter during business hours.” The Warhus case just cited held that there was nothing unreasonable in such a regulation, nor did it work a forfeiture of the depositor’s money, and that if the depositor, when he wished to withdraw the money, could not do what the regulation of the defendant required, he must do the next best thing: account for the non-production of the pass book, and show its loss or destruction. The plaintiff herein has done neither. What he has shown is that the pass book, when returned to him by mail by defendant, as instructed by him, was taken possession of by his wife, who presumably still retains the same. He has taken no legal steps to secure the return of this pass book. He left Ireland without any adequate effort to find his wife, to ascertain her whereabouts or to regain possession of the book. This despite the fact that she had a brother and sister living in Ireland within a short distance of his then residence there, and from neither of them did he seek any information as to his wife’s whereabouts. He' returned to this country without any attempt to regain possession of his pass book, though he knew from the bank’s correspondence with him that they stood upon their contract and would, not pay him without the production of the book. Mierke v. Jefferson County Savings Bank (208 N. Y. 347) held that where a hank had failed to make a by-law providing for the method of making payments in case of the loss of a pass hook, or other exceptional cases, where the hook could not be produced without loss or serious inconvenience to depositor (Banking
McLaughlin, J., concurred.
Judgment and order affirmed, with costs.
Now Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 869), 248.—[Rep.