This was an action on contract to recover a balance due plaintiff for services performed in obtaining new accounts in defendant’s bank pursuant to a written agreement by the terms of which plaintiff undertook to procure depositors and defendant’s predecessor agreed to pay three dollars for each account. A large number of the accounts were one dollar each, but it appeared beyond question that accounts as low as this were contemplated and that the bank regularly accepted them. The contract provided that “ The issuing of the pass book by The Bank indicates a new and-.acceptable depositor, as hereinafter stated,” and further provided that the bank “ has the right to refuse payment for depositors accepted from The Corporation where such accounts in the judgment of the Bank are undesirable.” Long after the accounts were turned in and after the bank had paid the plaintiff on account of many of them, but without prejudice, the bank determined that 1,145 accounts were undesirable solely because of their amount, and refused to pay the plaintiff its agreed commissions. Plaintiff sued.to recover the agreed fee and defendant counterclaimed for what amounted to an overpayment, which overpayment was established if the defendant was in a position to take advantage of its claim that it had rejected the accounts as undesirable.
It clearly appears that notwithstanding the'bank accepted the one dollar accounts and issued a pass book it still had the right to determine that the accounts were undesirable, and on such determination to reject them. The difficulty with the bank’s position, however, is that all that it did was to notify the plaintiff that it considered the accounts undesirable and in spite of this the bank thereafter retained the accounts and never canceled them. In my opinion, the bank could not retain the deposits and have the use of the money and, to this extent, the benefit of plaintiff’s work, i and at the same time take the position that it had “ rejected ” *657the accounts as “ undesirable.” The direction of a verdict upon defendant’s counterclaim was, therefore, erroneous.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to ’"abide event.