(concurring):
I agree to the reversal of this judgment. . No particular form of demand was necessary. As Judge Bronson said in Downes v. Phœnix Bank of Charlestown (6 Hill, 299), “ The understanding between the parties is, that the money shall remain with the banker until the customer, by his check, or in some other way, calls for its repayment.” Here the receiver called for payment. It was a demand, though not such a demand as the bank was bound to honor. The receiver said, “ Will you please send me that amount,” specifying it. That was certainly a request for the money. The bank need not have replied, or it might have replied, “We will not send you that amount, as you are bound to call for it.” But it made neither of these replies. It spoke through its lawyers. The reply of these gentlemen was, therefore, the reply of the bank. It was quite as though the bank had written directly to the receiver and had said what they said. The bank then, being asked to please remit the amount due, replies, “ You are probably not aware that the bank is itself a creditor of Campbell & Co. to an amount far exceeding these moneys mentioned in your letter to it.” This is its sole reply to the request for the money. What is that but a refusal to honor the plaintiff’s request, not because the bank objected to its form or substance, but because it deemed. itself entitled to keep the money ? The receiver was justified in thus regarding the letter in question, and in treating it as the bank’s counter statement to his request; a counter statement implying non-recognition of his rights, an assertion of the bank’s rights, and a refusal to pay him.
Yan Brunt, P. J., concurred.