Since the defendant’s by-law permitting its secretary to “ waive the production of the pass-book in case of its loss, or *75where the depositor resides out of the city of Buffalo, or in other exceptional cases where, in the opinion of the secretary, the pass-book cannot be procured without loss or serious inconvenience to the depositor, ” is a form of by-law which is expressly authorized and provided for by section 152 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10),* and since that section of the statute provides that “No savings bank shall * * * pay any interest or deposit, or portion of a deposit, or any check drawn upon itself by a depositor unless the pass-book of the depositor be produced, and the proper entry be made therein at the time of the transaction,” I am of opinion that the by-law in question was not made exclusively for the benefit of the defendant bank, and that it is not a by-law which the defendant can waive. I also think that this by-law was a part of the contract between the plaintiff and the bank in reference to her deposit, upon which she had a right to rely, and that the question of fact- as to whether the secretary was authorized to waive the production of the pass book and pay the check without its production was properly submitted to the jury, and that their verdict upon that question should not be disturbed.
In view of the instructions of the trial court to the jury, I think there was no error in the receipt of evidence which should lead to a reversal of the judgment.
The judgment and order appealed from should be affirmed, with costs.
Merrell, J., concurred.
Judgment and order reversed and complaint dismissed, with costs, including costs of this appeal.
Now Banking Law (Consol. Laws, chap. 3; Laws of 1914, chap. 369), § 348, subds. 3, 3.— [Rep.