
    Elias Rosenthal, Respondent, v. The Dollar Savings Bank of the City of New York, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Banking — Deposits in savings bank — Repayment of deposits — Conditions precedent and election of remedies — Conditions precedent to payment — Production of pass-book.
    The assignee of part of a savings bank deposit, standing in the name of a husband and wife, cannot recover the same in an action against the bank, when the assignment was made by the husband and the wife has the pass-book and refuses to give it up.
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, rendered in favor of the plaintiff.
    Lexow, Mackeller & Wells, for appellant.
    Alexander B. Greenberg, for respondent.
   Ford, J.

Plaintiff-respondent -sues defendant-appellant for $100 assigned to plaintiff out of a savings bank deposit in defendant’s bank. The deposit was in the name of husband and wife, either of whom had the privilege of drawing against it. The assignment was made by the husband to plaintiff who presented it to the bank, together with an order for the money and an affidavit of the husband showing that the wife had the pass-book and refused to give it to him. The defendant refused payment because the pass-book was not presented. Plaintiff had judgment.

Section" 113 of the Banking Law reads as follows: “ The sums deposited with -any savings bank, together with any dividends or interest credited thereon, shall be repaid to such depositors, respectively, or to their legal representatives, after demand, in such manner and at such times, and after such previous notice, and under such regulations, as the board of trustees shall prescribe. Such regulations shall be posted in a conspicuous place in the room where the business of the corporation shall be transacted, and shall be printed in the pass-books or other evidences of deposit furnished by it, and shall be evidence between the corporation and the depositors holding the same of the terms upon which the deposits therein -acknowledged are made.”

Rule 8 of the bank, which is posted and printed as required by the. foregoing provision, is as follows: “ Withdrawals may be made by depositors, either in person, or by an order in writing, or a proper power of attorney. No person shall have the right to withdraw -any part of the principal or interest without producing the pass-book that the payment may be entered therein.”

In section 122 of the Banking Law is found the following provision: Ro savings bank shall make or issue any certificate of deposit payable either on demand or at a fixed day, or pay any interest except regular quarterly or semi-annual dividends upon any deposits or balances, or pay any interest or deposit, or portion of a deposit, or any check drawn upon itself by a depositor, unless the pass-book of the depositor be produced and the proper entry be made therein at the time . of the transaction.”

These clear provisions of the statute and regulations of the bank were binding upon both plaintiff and defendant and justified the bank in refusing the demand of plaintiff. The courts should not be called upon to interfere with the reasonable rules made by a savings bank pursuant to statute for the regulation of its business without substantial reason therefor. See Mitchell v. Home Savings Bank, 38 Hun, 255.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Geigerich and Hendrick, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  