(dissenting):
For seven years before the 24th of February, 1897, the firm of William Campbell & Co. was engaged in business and was a depositor in the Central National Bank. On the 13th of December, *4391895, there stood to the credit of the firm, on the books of the bank $1,138.08, being the balance due it as depositor in the bank. The^ plaintiff was appointed receiver of that firm on the 21th of "February, 1897. On the 12th of May, 1897, he wrote and sent to the defendant a letter, of which the following is a copy :
“New York, May 12th, 1897.
“ Central National Bank of New York :
“ Gentlemen.— I have been appointed receiver of the late firm of William Campbell & Company, which has on deposit with you the sum of $1,138.08. Will you please send me that amount, and let me know what papers you require for vouchers, showing my appointment, and I will prepare and send them to you.
“ Yours truly,
“ (Signed) JOHN DELAHUNTY,
“ Reo'r.”
No other demand was ever made for the amount of the deposit than the writing and sending of this letter by mail to the bank. The only notice taken of the letter was a reply sent the next day by the counsel of the bank, of which the following is a copy :
“ New York, May V&th, 1897.
“ John Delahunty, Esq.:
“Dear Sir.—The Central National Bank of New York has referred to us your letter of yesterday, requesting us to attend to it. Yon are pwobably 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.
“ Yours truly,
“ DUER, STRONG & JARVIS.”
After the receipt of that letter by the receiver, there seem to have been no further communications between the parties, but this action was brought against the bank for the recovery of the amount of the deposit. On the trial, upon proof of the foregoing facts, the court held that no sufficient demand had been made upon the bank, and that it had not waived a demand or refused to pay ; and, therefore, that the plaintiff had not proved a cause of action, and it directed a nonsuit. From the judgment entered upon that direction this appeal is taken.
*440While, in a general way, it may be said that a bank is the debtor of its depositor for the money deposited with it, yet there arises from the fact of the deposit no immediate duty to pay back the money without a demand ; and until a demand has been made the bank is not in default for any refusal to pay, and no action can be maintained against it. (Downes v. Phœniw Bank of Charlestown, 6 Hill, 297.) So firmly is this rule settled that it is now established that the Statute of Limitations does not run in favor of the bank and against the depositor to recover the amount of the deposit until a demand has been made. (Howell v. Adams, 68 N. Y. 314; Bank of British North America v. Mercantile Nat. Bank of N. Y., 91 id. 106.) When one is dealing with a bank, the known customs of the business of banking and the ordinary methods of transacting that business enter into the contract, and the parties must be understood as having governed themselves by such customs and methods, and this, whether there was any proof made that they had actual knowledge of them or not. (Fowler v. Brantly, 14 Pet. 318, 320.) The general customs of the banking business are well known and judicial notice must be taken of them. (Merchants’ Nat. Bank v. Hall, 83 N. Y. 338; The British & American Mort. Co. v. Tibballs, 63 Iowa, 468.) One of these customs, which is thoroughly settled, is that a demand for money deposited in the bank is to be made at the banking office and during banking hours, and the bank is not called upon to pay any attention to a demand made elsewhere or at any other time. It is not necessary to say that the demand must be accompanied with a check or any voucher; but that it must be made at that place and during those hours cannot be disputed. It is easy to understand that it would be impossible for a bank to do business in any other way. If depositors were to be permitted to send to the bank by mail or messenger a notification that they desired the bank to pay certain money to them at a certain time at their own places of business, so that the bank in paying the money would be required to send its messenger from house to house as a milkman serves his customers, it is quite clear that it would be impossible to transact banking business. This demand was not made in such a way as the customs of the banking business required. It was sent by mail, and it called upon the bank to transmit to the receiver at his office the amount of the deposit, and to receive its *441vouchers thereafter when the receiver was satisfied what papers were necessary to be delivered by him.
If the bank had paid no attention to this letter, no one would claim for an instant that it operated as a demand to put it in default and to permit an action against it for the recovery of this money. But it is said by the plaintiff that the answer of the bank showed that a demand would have been futile, and, therefore, that there was no necessity of making one. In the case of Southwick v. First National Bank of Memphis (84 N. Y. 420) it is said that “ when a demand is necessary it is not excused by showing that the defendant would not probably have complied if one had been made.” But without insisting upon the rule of law there laid down, and conceding that if it had been made to appear that the bank would not have complied with a proper demand under any circumstances, the plaintiff would have been excused fi-orn making one, it remains to be considered whether the letter which was in fact written was to be construed as a refusal to pay the money such as to relieve the plaintiff from the necessity of making the demand.
The relative situations of the parties as they appear from the evidence are that the firm of Campbell & Go. were depositors with the bank; that the deposit had been standing unclaimed from December, 1895, until May, 1897, and that the receiver was appointed very shortly before his letter was written. Whether he had any information as to the business relations between the bank and the firm does not appear. It is fairly to be assumed from the letter, and there is no other proof in the case upon the subject, that the bank was a creditor of Campbell & Go. to a considerable amount. If Campbell & Go. were solvent, and there is no proof that they were not, the bank owed them nothing, because it had the right to set off the amount of the deposit against the debt. (Commercial Bank of Albany v. Hughes, 17 Wend. 94; Sweeny v. Easter, 1 Wall. 166.) If for any reason that right did not exist, it is quite clear that the defendant was entitled to be informed as to the facts which took away the right before it could be called upon to pay over the full amount of the deposit to the receiver. No inference can be drawn from the letter of the defendant that, if it had been made to appear that the firm of Campbell & Co. was not solvent, so that the defend*442ant, instead of being entitled to set off its claim, was entitled to none of it or only to such a percentage of it as the assets of Campbell & Co. would warrant, it would not have paid the full amount of the deposit. Before it would be called upon to do so, it was entitled to have the information given to it as to the condition of this firm, so. that it might know its rights and whether or not that deposit wa§ in fact due. It is a fair interpretation of the letter of the defendant to say that, so far from being an absolute refusal to pay the amount of the deposit, it was an invitation to the receiver to give to the writers of the letter the information which would enable them to know whether or not that deposit was due. Such an answer neither-tended to show that a demand would be futile, nor can it fairly be construed as a refusal; and, unless it operates as one or the other, it clearly did not make that demand good which before that time was-good for nothing.
But it is claimed by the plaintiff that the defendant is not in a. situation to insist that the demand was not sufficient because it ■alleged in its answer that the amount of the deposit had been applied upon the debt due from Campell & Co. to the bank. There ■ is no proof of that fact. If the defendant admits that fact — and unless it admits it no advantage can be taken of it here — then the bank, having a counterclaim to a very much larger amount than the-amount of the deposit, had the right to apply the deposit upon it and was not indebted to Campbell & Co. when the receiver was-appointed, and is not indebted to the receiver now. But I apprehend that the fact that the defendant sets up as an affirmative-defense something which, if proven, would do away with the necessity of proving a certain fact to establish a cause of action, does not permit the plaintiff to recover without proving his cause of action, at. least, until proof has been given to establish the defense. The rule is thoroughly settled that the defendant may put his defense upon distinct and even upon inconsistent grounds (Goodwin v. Wertheimer, 99 N. Y. 149), and if the defendant pleads a general denial,, the plaintiff is clearly bound to prove his cause of action, although the defendant may also set up a confession and avoidance by way of affirmative defense. When the plaintiff closes his case, the question for the court is whether, taking the facts proved and the admissions of the pleadings, the plaintiff has shown himself entitled to *443recover. If he has not, then it is the duty of the court to nonsuit* or to dismiss his complaint, without taking proof of the affirmative defenses set up in the answer. I am quite clear that when the proof closed upon this trial the plaintiff had shown neither a sufficient demand nor a refusal, and, therefore, that the ruling of the court was correct.
The judgment should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide event.