Hotchkiss, J.:
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 *545v. Bowery Savings Bank (21N. Y. 543) it appeared that in pursuance of the provisions of the act incorporating the defendant and by which it was authorized to prescribe regulations for the withdrawal of moneys, the defendant had adopted a rule that “no person shall have the' right to demand any part of his principal or interest without producing the original book, that such payment may be entered therein,” and it was held that proof of the loss of the pass book or inability to find it after proper search, excused its non-production and entitled the depositor to his money. But the plaintiff in that case having offered no proof whatever of the loss or destruction of the book or any proof to account for its non-production, a dismissal of the complaint was sustained. In the present case, defendant having made no rule regulating payment- where, because of its loss or because of other exceptional circumstances, the book could not be produced, the first inquiry must be whether the facts disclose a reasonable excuse for plaintiff’s failure to present his book when he sought to withdraw his money.- The purpose of the rule requiring the production of the book is to protect the bank against the payment of deposits to others than those entitled thereto, and the reasonableness of the excuse for not producing the book must be determined in the light of this purpose. Had it been shown that the book was actually lost, a refusal to pay without its production would not have been justified. (Mierke v. Jefferson County Savings Bank, 208 N. Y. 341.) Is the situation changed because, although it is to be inferred that the book is in the possession of a certain identified individual (no ground for suspecting an adverse claim on his part appearing), the whereabouts of that person cannot after reasonable search be ascertained ? I think not. Assuming that the delivery of the registered package by the Irish post office authorities to plaintiff’s wife was justified, notwithstanding it was addressed to plaintiff himself, what presumption can follow except that the wife received the package as plaintiff’s agent and to hold for him ? When after his release from the asylum plaintiff returned to the marital domicile and found it closed, and when after inquiry of those living in the neighborhood
*546plaintiff was unable to ascertain the whereabouts of his wife, I think he had performed every duty that could be reasonably required, particularly in view of the fact that the uncertainty of his wife’s whereabouts was characterized by the circumstance that she had neither visited nor communicated with him while he was in the asylum. In Palmer v. Providence Institution for Savings (14 R. I. 68), after the death of the depositor, plaintiff, his administrator, was unable to obtain the pass book from the depositor’s family, who had taken possession of it after his death, which fact plaintiff communicated to the defendant, which refused to pay, but the court held plaintiff entitled to recover. There is nothing in the record before us to show that if the plaintiff had made inquiry of them, the relatives of his wife, who lived near Dublin, could have given him any information of her whereabouts. The plaintiff testified that on several occasions he called at defendant’s banking house and informed its deputy comptroller of the facts concerning his search for his wife and his attempts to get possession of his book, but was told that no payment would be made without the book, and this was corroborated by the deputy comptroller, who said: “ I told him where the pass book was and. we had information it was in the hands of his wife.” On this evidence the jury was justified in finding that having adopted no rule or by-law regulating the conditions under which deposits might be withdrawn without producing the book, defendant stood out and refused to pay solely on this ground. 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. .
The judgment and order should be affirmed, with costs.
*547Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Dowling, JJ., dissented.
Dowling, J. (dissenting):
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" court="NY" date_filed="1860-06-05" href="https://app.midpage.ai/document/warhus-v--bowery-savings-bank-3625518?utm_source=webapp" opinion_id="3625518">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" court="NY" date_filed="1913-05-06" href="https://app.midpage.ai/document/mierke-v-jefferson-county-savings-bank-3592021?utm_source=webapp" opinion_id="3592021">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 *548Law [Consol. Laws, chap. 2; Laws of 1909, chap. 10], §§ 143, 152) the defendant could not insist on the giving of an indemnity bond, but the only question was whether plaintiff had given satisfactory evidence of the loss of the book. Here the record affirmatively shows that the book is in existence; it-has not been lost, but to plaintiff’s knowledge is in the possession of a third party; he has taken no means to regain such possession; and, therefore, it seems to me, until plaintiff has exhausted every reasonable means of obtaining possession of his pass book, or has made the party holding it a party defendant in his action, that he cannot recover against the depositary in the face of the express terms of the contract between them, which have been held not to be unreasonable. I, therefore, believe that the judgment appealed from should be reversed, with costs, and judgment given in favor of defendant, with costs.
McLaughlin, J., concurred.
Judgment and order affirmed, with costs.