
    Augusta Butler, Plaintiff, v. Broadway Savings Institution of the City of New York, Defendant.
    Second Department,
    February 28, 1916.
    Banks—savings bank—by-laws stating business hours—transaction of business at earlier hour pursuant to custom —when bank not liable to depositor who orders payment stopped.
    Although the by-laws of a savings bank state that it shall be open for business daily from ten A. M. to three P. M., it may make valid payment on checks of a depositor before said opening hour where it has been its custom to begin business at nine A. H.
    Hence, where the bank paid the check of a depositor shortly after nine o’clock it is not liable although the depositor subsequently appeared before ten o’clock and ordered payment stopped.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure
    
      Louis W. Dinkelspiel [B. M. S. Putnam with him on the brief], for the plaintiff.
    
      Richard Kelly, for the defendant.
   Per Curiam :

The plaintiff, through one Gribbs, was induced to buy mining stock of Pratt, the president of a mining company. It was represented to her that the stock was worth more than she was paying for it and that it would pay dividends within four months. In payment of the stock she gave Pratt a draft on her savings bank, the defendant herein. It was her custom to draw drafts on her account with the defendant in payment of her obligations, and for that purpose she left her pass book at defendant’s office. Pratt presented the draft for payment at the bank at nine-thirty on the morning following the sale of the stock. The bank honored the draft and, as was its custom, entered the amount in plaintiff’s pass book. Plaintiff, meantime repenting of her bargain, went to the bank on the same morning for the purpose of intercepting payment. When she arrived there, at nine-forty, she was informed the draft had been paid.

The' bank was accustomed to open at nine a. m. and to pay similar drafts before ten A. M., although it had a by-law which provided that the bank shall be open for business daily from 10 o’clock A. m. to 3 o’clock p. M.” The plaintiff did not know of the bank’s custom to open at nine o’clock. She relies upon the by-law and claims that the act of the bank in paying the draft before ten o’clock was illegal.

The parties have submitted the question in controversy for the purpose of determining their respective rights.

The bank claims that the payment was valid. If that contention is sound, this controversy is settled in its favor. We have not been supplied with a precedent and we have been unable to find one. The rule quoted does not expressly prohibit the payment of a draft without the fixed hours. The rule is merely a regulation for the convenience of the bank. There is no evidence that in its terms it was designed to afford special protection to the depositors.

judgment directed for the defendant, with costs.

Jenks, P. J., Thomas, Stapleton, Mills and Rich, JJ.. concurred.

Judgment directed for the defendant, with costs.  