
    Elizabeth Ranney, Respondent, v. The Bowery Savings Bank, Appellant.
    (Supreme Court, Appellate Term,
    
    November, 1902.)
    Savings bank — Buie) as to the method of making a gift of a deposit — Gift causa mortis — Affirmative defense.
    A depositor of a savings bank is not bound by its rule, forbidding any gift of a deposit unless by an assignment or other transfer in writing signed by the depositor and duly acknowledged, where the rulé was made after she became a depositor. Her agreement to another rule that all notices as to deposits or depositors, when published by. placards in the bank, should be deemed and taken as personal notice to each depositor, although said rule as to gifts had been placarded In the bank for many years before her death, has not the retroactive effect of binding her to the first above rule.
    .Accordingly, a donee causa mortis of the depositor, in possession of the bank book by delivery from the depositor, was allowed to recover the deposit of the bank.
    
      Semble, that if the first above rule were in any manner available to the bank as a defense it would be matter of confession and avoidance, not available when not pleaded as an affirmative defense.
    Appeal by the defendant from a judgment and order of the General Term of the City Court of the city of New York, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury, and also affirming order denying defendant’s motion for a new trial.
    
      Cowing & "White (Robert Goeller, of counsel), for appellant.
    Eromme Brothers (James A. Douglas, of counsel), for respondent.
   Freedman, P. J.

The plaintiff’s claim against the defendant bank is based on an alleged gift causa mortis of a certain sum deposited in the bank by her mother. At the trial evidence was given by and on behalf of the plaintiff which is relied upon as establishing the said gift and the delivery of the pass-book representing the sum deposited. Although the policy of the law is against the encouragement of gifts of this nature, we feel bound to say, upon a close scrutiny of the whole ease, that the evidence was sufficient to carry the case to the jury; that the issues were fairly submitted, and that the verdict of the jury should not be disturbed, unless the contract of plaintiff’s mother with the bank precluded her from making the gift in the manner she did.

The bank insists that the gift was invalid against it because not made by a writing duly signed and acknowledged as required by rule 14 of its rules and regulations, which is as follows: “ 14. No gift of any kind shall be made of the whole or any part of the amount due a depositor, unless by an assignment or other transfer in writing signed by the depositor and duly acknowledged or proved before an officer authorized to take such acknowledgment or proof."

This rule was adopted in the year 1891, whereas the account of plaintiff’s mother, as a depositor in the bank, was opened March Y, 1888. The pass-book issued to her by the bank at that time, and the signature-book in which she subscribed the by-lawa and regulations of the bank and agreed to be bound by them, had printed in them a number'of rules and regulations, and one of them was to the effect that all notices in relation to the deposits or depositors published by direction of the trustees in one or more of the daily newspapers of this city, or by placards in the bank, should be deemed and taken as personal notice to each depositor.

By' force of this rule or regulation and the further fact that rule 14, as above stated, when adopted in 1891, was hung up by placards in the bank, it is claimed that the deposit of plaintiff’s mother, though made years before, became subject to the operation of rule 14, although said rule was not contained in her pass-book nor subscribed by her at the time she made the deposit.

There are two answers to this contention.

In- the first place, although every savings bank has authority to make and publish reasonable regulations concerning the repayment of money to a depositor which, if assented to by a depositor, become part of the condition upon which the bank receives the deposit, the power must be exercised in a reasonable manner and in conformity with the statutes of this State. In 1888, when* plaintiff’s mother opened her account, section 251 of chapter 409 of the Laws of 1882 was in force, and that provided that the regulations of the bank for the repayment of deposits to depositors “ shall be put in some conspicuous place in the room where the business of such corporation shall be transacted, and shall be printed in the pass-books or other evidence of deposit furnished by the corporations, and shall be evidence between the corporation and the' depositors' holding the same, of the terms upon which the deposits therein acknowledged are made,” etc.

The same provision was incorporated into the Banking Law of 1892. Laws of 1892, chap. 689, § 113.

This provision malces it impossible for the bank to totally avoid its obligation to one having a complete title to the fund and the actual possession of the pass-book, etc., to repay the amount deposited according to 'the rules and regulations printed in a depositor’s pass-book, By a rule or regulation adopted subsequently, and it would be unreasonable to hold that the mere placarding of the subsequent rule or regulation has the retroactive effect contended for by the bank.

In the second place, the defense sought to be maintained under rule 14, as above stated, was not pleaded, and being matter of confession and avoidance is not available to the defendant unless pleaded as an affirmative defense.

The only affirmative defense set up in the answer was that certain parties other than the plaintiff claimed the said fund, and that said claimants should be made parties to this action, and that the bank has been, and is, at all times ready and willing to pay over the said fund to the party or parties entitled thereto. But no names or particulars were given. The matter thus pleaded constituted no defense. If the facts were as alleged, the bank should have taken steps to have such claimants brought in if possible. Moreover the bank could have protected itself, and, perhaps, did so, by notifying such claimants of the pendency of the present suit and calling upon them to defend the same.

Eor the foregoing reasons none of the exceptions taken by the defendant as set forth in the record, constitutes ground for reversal.

The judgment and order must he affirmed, with costs.

MacLean and Blanchard, JJ., concur.

Judgment and order affirmed, with costs.  