
    Warhus v. Bowery Savings Bank.
    
      Regulation of Savings Bank.
    
    A regulation of a savings bank, requiring the production of a depositor’s pass-book, to entitle him to payment, is a reasonable one; and will be enforced, even against an administrator, who makes no excuse for its non-production.
    Warkaus ®. Bowery Savings Bank, 5 Duer 67, affirmed.
    * Appeal from the general term of the Superior Court of the city of New York, where a judgment of nonsuit had been affirmed. (Reported below, on a former trial, 5 Duer 67.)
    This was an action by Henry F. Warhus, administrator of Frederick Warhus, deceased, to recover a balance of $198.68, which appeared on the books of the Bowery Savings Bank to have been due to the intestate, at the time of his decease.
    The rules of the bank, which were printed in the depositor’s pass-book, in English, provided that no person should have the right to demand any part of the principal or interest, without producing the original book, that such payment might be entered thereon. The depositor was a German, incapable of reading the English language. On a demand by the plaintiff, as administrator, the bank officers required the production of the pass-book, but it was not produced, nor any excuse given for its non-production, either then, or upon the trial.
    On the trial, the judge offered to allow the plaintiff to give evidence of the loss or destruction of the pass-book, or, that upon a proper search, it could not be found; but no such evidence being given, the complaint was dismissed; *and the judgment of nonsuit having been affirmed at general term, this appeal was taken.
    
      Williams, for the appellant.
    
      Reynolds, for the respondent.
   Davies, J.

It is provided, in and by the 6th section of the act incorporating the defendants (Laws of 1834, c. 229), that the corporation shall receive, as deposits, all sums of money that maybe offered for that purpose; “ and such deposits shall be repaid to each depositor, when required, and at such times and with such interest, and under such regulations, as the board of managers shall, from time to time, prescribe;” and which regulations were to be put up in a conspicuous place in the room where the business of the corporation should be transacted.

In pursuance of this authority, the defendants adopted the rule or by-law above quoted, and had the same posted in a conspicuous place in the room where their business was transacted, and a copy was pasted in the front part of each depositor’s book. The question presented is, whether the plaintiff can recover, without the production of the pass-book, or giving some evidence of its loss or destruction, or in some way accounting for its non-producduction. It is contended, on the part of the plaintiff, that he can. In the first place, it is to be remarked, that the legislature evidently contemplated, that some rules and regulations in reference to the repayment of money to the depositors would become necessary; they were called for, alike for the protection of the depositor as of the bank. In pursuance of the authority thus conferred, the defendants adopted the regulation, that, on re-payment of any moneys, principal or interest, the pass-book should be produced, to the end that such payment might be entered therein, and reasonable certainty would thereby be attained, that the payment was made to the person legally entitled to receive it. This regulation was put up in accordance with the requirements *of the act of incorporation, and was assented to by the depositor, and we are bound to hold, that it was part of the condition upon which the defendants received the deposit.

We see nothing unreasonable in this regulation;' and, we fail to come to the conclusion, that it was intended, or does, in fact, work any forfeiture of the depositor's money. It is to receive a reasonable construction, and not to be perverted to consummate fraud or work injustice. If the depositor, when he wishes to withdraw his money, cannot do what the regulations of the defendants require, and what he has agreed and stipulated to do, he must certainly do the next best thing—account for the non-production, and show its loss or destruction. There would be no safety, either to the bank or to the depositor, if the former was bound to pay, on demand, without the production of the pass-book, as the evidence of authority to receive the money by the person demanding it; or, if it is not produced, the same security to both, requires some excuse for its non-production to be given.

The case was put as favorable for the plaintiff, by the judge, at the trial, as it could have been; and as he did not avail himself of the privilege given, to prove that the pass-book had been lost or destroyed, or that, on proper search made for it, it could not be found, but chose to place himself upon his strict right to the money, upon a demand for it, without any compliance with this regulation, or to offer to excuse such non-compliance, he must abide by the consequences of the position assumed. We think, the grossest injustice would follow, from the adoption of the principle upon which it is sought to maintain this action. On the contrary, we think, that, if we hold that the pass-book should have been produced, or proof given of its loss or destruction, or that proper search had been made for it, and that it could not be found, no injustice is done to either party, but that the rights and security of both are alike preserved. If the plaintiff makes such proof, he will be entitled to his money on demand ; and if the b ank should then refuse payment of it, an action could be maintained We are clearly of the °P™on’ *hat, upon the facts ^appearing in this case, this action cannot be maintained, and that the complaint was properly dismissed.

The judgment of the supreme court is, therefore, affirmed, with costs.

Judgment affirmed. 
      
       Though the rules of a savings bank provide that the presence of the pass-book shall be evidence of authority to receive payment, yet this does not dispense the bank from the exercise of ordinary caution to detect a fraud on the depositor. Appleby v. Erie County Savings Bank, 62 N. Y. 12. If the bank obligates itself to use its “best efforts” to prevent fraud, it is held to- more than ordinary care and diligence. Allen v. Williamsburgh Savings Bank, 69 Ibid. 314.
     