The account of the plaintiff was received by the defendant subject to the latter’s by-laws which were printed in the depositor’s book, and which constituted part of the contract between the parties on which the deposit was received. (Warhus v. Bowery Savings Bank, 21 N. Y. 543.) One of these by-laws provided: “ The Bank shall not he liable or called on to make any payment without the presenting of the pass-book at its counter, that the proper entry may be made in it, nor shall it be liable for any deposit unless made at its counter during business hours.” The Warhus case just cited held that there was nothing unreasonable in such a regulation, nor did it work a forfeiture of the depositor’s money, and that if the depositor, when he wished to withdraw the money, could not do what the regulation of the defendant required, he must do the next best thing: account for the non-production of the pass book, and show its loss or destruction. The plaintiff herein has done neither. What he has shown is that the pass book, when returned to him by mail by defendant, as instructed by him, was taken possession of by his wife, who presumably still retains the same. He has taken no legal steps to secure the return of this pass book. He left Ireland without any adequate effort to find his wife, to ascertain her whereabouts or to regain possession of the book. This despite the fact that she had a brother and sister living in Ireland within a short distance of his then residence there, and from neither of them did he seek any information as to his wife’s whereabouts. He' returned to this country without any attempt to regain possession of his pass book, though he knew from the bank’s correspondence with him that they stood upon their contract and would, not pay him without the production of the book. Mierke v. Jefferson County Savings Bank (208 N. Y. 347) held that where a hank had failed to make a by-law providing for the method of making payments in case of the loss of a pass hook, or other exceptional cases, where the hook could not be produced without loss or serious inconvenience to depositor (Banking *548Law [Consol. Laws, chap. 2; Laws of 1909, chap. 10], §§ 143, 152)* the defendant could not insist on the giving of an indemnity bond, but the only question was whether plaintiff had given satisfactory evidence of the loss of the book. Here the record affirmatively shows that the book is in existence; it-has not been lost, but to plaintiff’s knowledge is in the possession of a third party; he has taken no means to regain such possession; and, therefore, it seems to me, until plaintiff has exhausted every reasonable means of obtaining possession of his pass book, or has made the party holding it a party defendant in his action, that he cannot recover against the depositary in the face of the express terms of the contract between them, which have been held not to be unreasonable. I, therefore, believe that the judgment appealed from should be reversed, with costs, and judgment given in favor of defendant, with costs.
McLaughlin, J., concurred.
Judgment and order affirmed, with costs.
Now Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 869), 248.—[Rep.