The defendant does not contend that the provision of the Banicing Law requiring the production of the pass book is an arbitrary condition that must at all hazards be complied with, but if it did, the contention could not be upheld. In Warhus *545v. Bowery Savings Bank (21N. Y. 543) it appeared that in pursuance of the provisions of the act incorporating the defendant and by which it was authorized to prescribe regulations for the withdrawal of moneys, the defendant had adopted a rule that “no person shall have the' right to demand any part of his principal or interest without producing the original book, that such payment may be entered therein,” and it was held that proof of the loss of the pass book or inability to find it after proper search, excused its non-production and entitled the depositor to his money. But the plaintiff in that case having offered no proof whatever of the loss or destruction of the book or any proof to account for its non-production, a dismissal of the complaint was sustained. In the present case, defendant having made no rule regulating payment- where, because of its loss or because of other exceptional circumstances, the book could not be produced, the first inquiry must be whether the facts disclose a reasonable excuse for plaintiff’s failure to present his book when he sought to withdraw his money.- The purpose of the rule requiring the production of the book is to protect the bank against the payment of deposits to others than those entitled thereto, and the reasonableness of the excuse for not producing the book must be determined in the light of this purpose. Had it been shown that the book was actually lost, a refusal to pay without its production would not have been justified. (Mierke v. Jefferson County Savings Bank, 208 N. Y. 341.) Is the situation changed because, although it is to be inferred that the book is in the possession of a certain identified individual (no ground for suspecting an adverse claim on his part appearing), the whereabouts of that person cannot after reasonable search be ascertained ? I think not. Assuming that the delivery of the registered package by the Irish post office authorities to plaintiff’s wife was justified, notwithstanding it was addressed to plaintiff himself, what presumption can follow except that the wife received the package as plaintiff’s agent and to hold for him ? When after his release from the asylum plaintiff returned to the marital domicile and found it closed, and when after inquiry of those living in the neighborhood
*546plaintiff was unable to ascertain the whereabouts of his wife, I think he had performed every duty that could be reasonably required, particularly in view of the fact that the uncertainty of his wife’s whereabouts was characterized by the circumstance that she had neither visited nor communicated with him while he was in the asylum. In Palmer v. Providence Institution for Savings (14 R. I. 68), after the death of the depositor, plaintiff, his administrator, was unable to obtain the pass book from the depositor’s family, who had taken possession of it after his death, which fact plaintiff communicated to the defendant, which refused to pay, but the court held plaintiff entitled to recover. There is nothing in the record before us to show that if the plaintiff had made inquiry of them, the relatives of his wife, who lived near Dublin, could have given him any information of her whereabouts. The plaintiff testified that on several occasions he called at defendant’s banking house and informed its deputy comptroller of the facts concerning his search for his wife and his attempts to get possession of his book, but was told that no payment would be made without the book, and this was corroborated by the deputy comptroller, who said: “ I told him where the pass book was and. we had information it was in the hands of his wife.” On this evidence the jury was justified in finding that having adopted no rule or by-law regulating the conditions under which deposits might be withdrawn without producing the book, defendant stood out and refused to pay solely on this ground. If the defendant was dissatisfied with the sufficiency of the attempts plaintiff had made to get possession of the book, it should have said so, and, although I do not mean, to suggest that it would then have been plaintiff’s duty to have pursued any further search, I think that, defendant having failed to make any objection on the ground of insufficient search at the time when demand was made upon it and having apparently placed its refusal on the sole ground that the book was not produced and was in possession of plaintiff’s wife, it is in no position now to claim that plaintiff’s search for his wife was not as thorough as it might have been. .
The judgment and order should be affirmed, with costs.
*547Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Dowling, JJ., dissented.