
    Rita Brooks, Respondent, v. Erie County Savings Bank, Appellant.
    Fourth Department,
    July 7, 1915.
    Banking—savings bank — payment of joint deposit-—by-law providing for waiver of production of pass book — payment to joint depositor.
    A joint deposit in a savings bank in the name of husband and wife may be paid to either of them.
    A bank is not negligent in making payment from such a deposit to a husband, in the absence of circumstances tending to show that it had knowledge or notice sufficient to put it upon inquiry that he was not entitled to draw the deposit.
    A by-law of a savings bank permitting the secretary to waive the production of the pass book when paying deposits applies to joint accounts, and such waiver is not contrary to the provisions of section 152 of the Banking Law.
    Foote and Merrell, JJ., dissented, with memorandum.
    Appeal by the defendant, Erie County Savings Bank, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of July, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.
    
      The action was brought to recover one-half of the amount of a check drawn by the defendant Brooks upon an account standing in the name of “Mrs. Bita Brooks or C. E. Brooks.”
    
      Adelbert Moot, S. Fay Carr and Henry W. Sprague, for the appellant.
    
      Louis Braunlein and James Harmon, for the respondent.
   Kruse, P. J.:

Concededly, under the form of the account in question, the defendant was authorized to pay the deposit to either the plaintiff or her husband. I think the rule of the bank permitting the secretary to waive the production of the pass book applies to joint accounts such as this, as well as to that of a single individual, and that the defendant had the right to waive the production of the pass book, as provided by the by-law under which the deposit was made, and that such waiver on the part of the bank is not contrary to the provisions of section 152 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10).

I am also of the opinion that in the absence of any circumstances tending to show that the defendant had knowledge or notice sufficient to put it upon inquiry that the husband was not entitled to draw the deposit, no question of fact was presented as to its negligence. Upon the undisputed evidence I think it should be held that the defendant was justified in paying the deposit to the plaintiff’s husband, and that the defendant’s motion to dismiss the complaint should have been granted.

If I am right in this conclusion it follows that the judgment should be reversed and the complaint dismissed, with costs.

All concurred, except Eoote and Merrell, JJ., who dissented in a memorandum by Foote, J.

Foote, J. (dissenting):

Since the defendant’s by-law permitting its secretary to “ waive the production of the pass-book in case of its loss, or where the depositor resides out of the city of Buffalo, or in other exceptional cases where, in the opinion of the secretary, the pass-book cannot be procured without loss or serious inconvenience to the depositor, ” is a form of by-law which is expressly authorized and provided for by section 152 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10), and since that section of the statute provides that “No savings bank shall * * * 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,” I am of opinion that the by-law in question was not made exclusively for the benefit of the defendant bank, and that it is not a by-law which the defendant can waive. I also think that this by-law was a part of the contract between the plaintiff and the bank in reference to her deposit, upon which she had a right to rely, and that the question of fact- as to whether the secretary was authorized to waive the production of the pass book and pay the check without its production was properly submitted to the jury, and that their verdict upon that question should not be disturbed.

In view of the instructions of the trial court to the jury, I think there was no error in the receipt of evidence which should lead to a reversal of the judgment.

The judgment and order appealed from should be affirmed, with costs.

Merrell, J., concurred.

Judgment and order reversed and complaint dismissed, with costs, including costs of this appeal. 
      
      "Now Banking Law (Consol. Laws, chap. 3; Laws of 1914, chap. 369), § 348, subds. 3, 3.— [Rep.
     
      
      Now Banking Law (Consol. Laws, chap. 3; Laws of 1914, chap. 369), § 348, subds. 3, 3.— [Rep.
     