Warhus v. Bowery Savings Bank — 12 N.Y. Super. Ct. 67

Majority

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Henry F. Warhus, Administrator, &c., of Frederick Warhus, deceased, v. The Bowery Savings Bank.

Headnote

F. W., in his lifetime, deposited several sums with the defendants, amounting in the whole to $198.68, and when he made the first deposit, a hook called a pass-book, was delivered to him, in which the sum deposited was entered by an officer of-the bank. When the plaintiff, his administrator, demanded payment of the whole deposit and interest, he did not, although required, produce this book, nor allege that it was lost or destroyed, nor was any proof of its loss or destruction given on the trial of this action, in which judgment was demanded for the whole deposit and interest. When the deposits were made, a regulation of the bank was in force, and was put up in a conspicuous place in the hanking-room, requiring every depositor, when demanding any payment of his deposit, to produce the original pass-book.

Held, that this regulation was authorized by the charter of the bank, that it was not unreasonable, and that the intestate was chargeable with knowledge of its existence, and consequently, that it was binding upon the intestate and upon the plaintiff.

Held, that as the regulation had not been complied with, the plaintiff, upon the evidence given upon the trial, was not entitled to recover.

Verdict for plaintiff set aside, and new trial ordered: costs to abide event.

(Before Dunn, Bosworth and Slosson, J. J.)

October term, 1855.

This was an action to recover the amount, with interest, of a deposit made by the intestate, F. Warhus, with the defendants. The- cause was tried upon the issues made by the pleadings, before Campbell, J., and a jury, in May, 1855.

The following are the material facts established by the evidence upon the trial.

The intestate was credited on the books of the bank with the sum of $198.68, including interest to the 1st of June, 1855, for several sums deposited by him with the bank.

When the first deposit was made, a book called a pass-book, was delivered to the intestate, in which an entry was made by an officer of the bank of the sum deposited. The book also contained, printed in English, the regulations and by-laws hereinafter referred to, but the attention of the intestate was not directed to them, nor was any explanation given to him of their purport. The intestate, it was proved, was a German, incapable of reading,

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speaking, or understanding the English language, and he continued so ignorant until his death. When he made the deposit, he subscribed his name in a book kept in the bank, containing the regulations and by-laws of the institution. He was directed by a clerk to sign his name in the book, but was not told for what purpose his signature was required.

After the death of the intestate, the plaintiff, in the month of August, 1854, went to the bank, and demanded payment of the whole sum standing to the credit of the intestate, and as proof of his authority to make the demand, exhibited the letters of administration that had been granted to him. He was asked by an officer of the bank whether he had the pass-book, and replied that he had not, and did not know where it was; but did not allege that any search had been made for it by himself or any other person. The letters of administration were then returned to him, and he was told, that without the book, the money would not be paid. A few days thereafter, he commenced this action.

No evidence was given or offered upon the trial to show the loss or destruction of the pass-book.

On the part of the defendants, the following by-laws were proved to have been duly made by the board of managers of the bank, and were read in evidence.

By-law No. 8.—“No person shall have the right to demand any part of his principal or interest without producing the original book, that such payments may be entered therein.”

By-law No. 11.—“ On making the first deposit, the depositor shall be required to subscribe, and thereby signify his assent to the regulations and by-laws of the institution.”

These rules had been adopted several years before the intestate made his first deposit, and at that time, were, among others, printed in English and framed, and were hung up in four or five different conspicuous places in the banking-room. It had been the uniform custom of the bank to require their observance.

The counsel for the defendants then called the attention of the Judge upon the trial to the following section in the act incorporating the bank:—

“ Section 6.—Such deposits shall be repaid to each depositor when required, at such times, and with such interest, and under such regulations as the board of managers shall from time to time

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prescribe, which regulations shall be put up in some public and conspicuous place in the room where the business of the said corporation shall be transacted, and shall not be altered so as to affect any deposit which shall have been made previous to such alteration, until after personal notice thereof.” (Sess. Laws, 1804, 414.)

It was then insisted on the part of the defendants, that they were entitled to a verdict in their favor.

The Judge, however, directed the jury to find a verdict for the plaintiff, for the sum of $204.01, principal and interest, subject to the opinion of the court at General Term, upon the questions of law arising on the evidence.

J. T. Williams, for plaintiff,

contended that the plaintiff was clearly entitled to judgment upon the verdict, unless it had been proved that there was a subsisting contract between the intestate and the defendants, founded upon a good and valuable consideration, to the effect that the intestate, and those claiming under him, should not be entitled to demand the funds deposited by him with the bank, unless the original book should be produced at the time of the demand; and he argued, that the rules and regulations of the bank neither created nor contemplated such a contract, but were intended solely for the government and convenience of the officers of the bank, and could not affect the rights of third persons, even if brought home to their personal knowledge. That the signature of the intestate in the book of rules and regulations kept by the bank, was not made by him with the intent that it should be evidence of a contract, or with knowledge that such was the intention of the officers of the bank. There was, consequently, no meeting of the minds of the parties, in reference to the alleged contract, its terms, or subject matter. He cited 19 Johnson, 158; 19 Wend. 234 , 251; 2 Hall, 623 ; 4 Wheat. 225 ; 5 Mees. & Welsb. 535; 1 Paige, 580; 2 Paige, 30; and other cases and authorities.

A. Schell for the defendants,

contended that the regulation of the bank, requiring the production of the book, when payment of a deposit was demanded, was folly authorized by law, and was binding on the intestate and his representatives, and as it had not

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'been complied with, and there was no evidence to show that the book had been lost or destroyed, the plaintiff could not be entitled to recover, but that the verdict in his favor ought to be set aside, and a verdict and judgment thereon to be entered for the defendants. He referred to a decision alleged to have been made by this court, in the case of M'Donald v. The Bank of Savings, in September, 1845.

We are clearly of opinion that upon the evidence given on the trial, the complaint ought to have been dismissed. This is not a case, however, in which a judgment as upon a verdict, which would operate as a bar to a future recovery, ought to be entered for the defendants. It may well be in the power of the plaintiff, in a future action, to give such evidence as will entitle him to recover.

Whether we should be justified in saying upon the case before us, that there was an express contract between the intestate and the defendants by which he bound himself to produce the original pass-book, whenever any payment of his deposit should be demanded, is a question we deem it unnecessary to consider. The plaintiff has no right to maintain this action, if the regulation contained in the bye-laws, requiring the production of the original book, was binding upon the intestate and his representatives; and it certainly was so, if the board of managers had power under the charter to make the regulation, and the regulation was not unreasonable in itself, and the intestate was chargeable in law with knowledge of its existence.

The authority of the managers to make the regulation cannot be doubted. By the express words of the charter, they are authorized to prescribe any regulations they may deem proper, relative to the payment of deposits, and the regulation in the bye-law which they passed is, plainly, of this character. Hor can it be said that the regulation, fairly construed, is unreasonable, and therefore void. In all cases, where there is a written evidence of a debt, and here the original pass-book is such evidence, its production, we apprehend, when payment of the debt is required, or sufficient proof of its loss or abstraction, may be justly demanded by the debtor, and it is this duty, and no more than this, that the by-law, as we understand it, imposes upon depositors. We have

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no right-to say that the meaning of the by-law is, that the non-production of the book, although its loss or destruction may be clearly proved, shall operate as a forfeiture of the deposit, and we are convinced that we should do great injustice to the managers by imputing to them such an intention. Thus construed, the bylaw would indeed be illegal and void, but, ut resmagisvaleatquam pereat, we are bound to give it a construction that will render it valid. The only question, then, that remains, is, whether the intestate was chargeable with knowledge of the regulation, and that he was so, seems to us also free from a reasonable doubt. The regulation, as the charter requires, was put up in one or more conspicuous places in the room in which the business of the bank was transacted, and the intention of the legislature plainly was, that this should operate as notice to the depositors. The provision that where a subsisting regulation shall 'be altered after a deposit shall have been made, it shall not affect the depositor without personal notice, necessarily implies, that when the regulation has not been altered, the depositor shall be bound by it, if it was properly put up in the banking room when his deposit was made; nor is there, in this, the slightest injustice. As a general rule, every person who deals with a moneyed institution, is bound by its regulations, lawfully made, although not communicated to him at all. If he wishes information he must inquire. A fortiori is the dealer bound, when an act, which the charter of the institution prescribes, and deems to be equivalent to a direct notice, has been performed. The charter, in the present case, by prescribing the mode by which the means of information shall be furnished to depositors, creates an exception, in their favor, from the general rule.

The conclusion is, that the regulation in question was binding upon the intestate, and upon the plaintiff, as his representative, and it cannot be- pretended, that it has been complied with. When the plaintiff demanded payment of the deposit, he did not produce the original pass-book, nor even allege—so far from offering any proof of the fact—that it was lost or destroyed. He said, only, that he did not know where it was, but did not say that he had searched for it in vain, or had searched for it at all. Nor was any proof of the loss or destruction of the book given or offered upon the trial. We do not say that this proof, if offered, could have been received, for this question is not properly before us,

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but, it is certain, that if this evidence could have been admitted, it was a necessary part of the plaintiff’s case.

Our decision, therefore, is, that the verdict for the plaintiff must be set aside, and there must be a new trial, with costs to abide the event.

We have been informed by the Chief Justice, that a similar decision was made by this court in 1844 or 5, in a case not differing, in any material circumstance, from the present.

Cases cited

Eliason v. Henshaw 4 Wheat. 225 SCOTUS p. 69