Brooks v. Erie County Savings Bank

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. Footnotes [*] "Now Banking Law (Consol. Laws, chap. 3; Laws of 1914, chap. 369), § 348, subds. 3, 3.— [Rep.