I concur for reversal, but upon a more radical ground. While the defendant could have adopted a rule that would cover a payment made in good faith to a person in possession of the pass book of a deceased depositor, it had not done so when the payments in question were made. As its rules then stood such a payment bound the depositor while he was alive, but did not bind his estate after he was dead, for they expressly provided that "on the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representatives when legally demanded." This rule is absolute and a part of the contract. It is the law of the case made by the parties. The language is that of the bank and, hence, if ambiguous, is to be construed in favor of the depositor, who is not responsible for the ambiguity. If we add to it in effect the proviso "but payment to one presenting the pass book of a deceased depositor shall be good unless the bank has notice of the death," we make a new contract. I repeat as applicable to the case in hand what we recently said in another case: "This latter by-law is for the protection of the depositor who can no longer protect himself, and, therefore, the bank is bound to see that payment was made to the proper person. Payment to any other person is made at the bank's peril." (Mahon v. South BrooklynSavings Institution, 175 N.Y. 69, 72.)
CULLEN, Ch. J., O'BRIEN, BARTLETT, HAIGHT and MARTIN, JJ. (and VANN, J., in result in memorandum), concur with WERNER, J.
Judgment reversed, etc. *Page 183