
    MARY CROSBY, Respondent, v. THE BOWERY SAVINGS BANK, Appellant.
    
      Decided July 8, 1884.
    
      Bank deposits—contract between the bank and depositor—third party claimant. —Demurrer.
    
    Where a party deposits money in his own name in a savings bank, the bank becomes his debtor and contracts to pay such amount to the depositor or to his legal representatives, and if the money so deposited, was in reality the property of another, and was so deposited with the consent of the owner, the terms, of the original contract with the bank are not changed. The complaint in an action by the real owner in such a case, to recover the money from the bank, should show notice to, or knowledge by the bank at the time of the deposit, that the plaintiff is the true owner, or that the money was deposited for the benefit of, and in trust for the plaintiff. Such facts must be alleged as will relieve the defendant from its contract liability with the depositor. *
    The complaint in this action being deficient in the allegation of such facts, it was held that the demurrer, on the ground that it did not state facts sufficient to constitute a cause of action, should have been sustained.
    If in this case the original depositor, had been made a party defendant, with proper allegations, there would have been an equitable cause of action (Sedgwick, Oh. J.).
    Before Sedgwick, Ch. J., and Ted ax, J.
    Appeal from an interlocutory judgment and order overruling a demurrer to the complaint.
    The complaint alleges the incorporation of the defendant under the laws of this state ; that on and between February 24, 1876, and January 28, 1881, one Edward Hewitt deposited with the defendant, in his own name, the sum of about $718.23; that the sum of $493.23, on account of said deposit so made, is still in the possession and custody of the defendant; that the plaintiff is and was at the time above mentioned the owner of the said money, and it was left for the benefit of and in trust for the plaintiff; and that the plaintiff has duly demanded the return of said money, which return the defendant has refused tb make. Judgment was demanded for $493.23.
    
      The defendant demurred to this complaint on the grounds that it does not state facts sufficient to constitute a cause of action.
    
      Norwood & Coggeshall, for appellant.
    
      Abram Kling, for respondent.
   By the Court.—Truax, J.

The complaint shows no obligation on the part of the defendant to return the money deposited with it, to the plaintiff. It does not show that the defendant knew that the money was the plaintiff’s money, nor that it was left for the benefit of and in trust for the plaintiff. The inference to be drawn from the complaint is that the money was given to Hewitt by the plaintiff to be deposited with the defendant in Hewitt’s name, and, therefore, it must be held that the plaintiff is bound .by the contract with the defendant, made with Hewitt, viz., that it would repay the money to Hewitt, the depositor, or to his legal representatives, on demand, as required by the General Savings Bank Act (Laws 1875, ch. 371; amended Laws 1882, ch. 409, § 257).

The deposit became the property of the defendant and the defendant .became a debtor to the depositor (Sims v. Bond, 5 B. & Ad. 393 ; People v. Merchants, &c. Bank, 92 N. Y. 7). This.contract was made by and with consent of the plaintiff. It does not appear that the defendant refuses to perform its contract, and, until it does so appear, there is no cause of action against the defendant.

In Mulcahy v. Develin (17 Week. Dig. 308), cited by respondent, the complaint alleged that the plaintiff was the owner of and was possessed of a certain sum of money on deposit with a third person, which sum of money, in some way, the defendant, without plaintiff’ s knowledge or consent, became possessed of. ' The general term of the court of common pleas held that a demurrer to the complaint would not lie, because the defendants by demurring admitted that the plaintiff owned and was possessed of the money that the defendant had appropriated, without her knowledge and consent. In this respect the two cases differ.

This action is to be distinguished»from those actions in which it has been held that whenever one man has the money of another which he ought to pay over, he is liable in an action of assumpsit. Here, as between the plaintiff and the defendant, the defendant ought not to pay over the money to plaintiff, because with plaintiff’s consent it has promised to pay to another (Stephens v. Radcock, 3 Barn. & Adol. 354).

Of course, if there be no cause of action, stated in the complaint, the defendant is under no obligation to bring in Hewitt, as provided by section 259 of the general savings bank act. That section applies to an action brought by the party in whose name the deposit was made when a claim to the deposit is made by another person.

The judgment.and order are reversed with costs, and demurrer is sustained, with costs.

Sedgwick, Ch. J.

[Concurring.] I concur with Judge Truax in his opinion, that there is no legal cause of action, but I think there would have been an equitable cause of action if Hewitt (the depositor) had been made defendant with proper'allegations.

CASES DECIDED AT SPECIAL TERM.  