Subdivision 3 of section 238 of the Banking Law inhibits the payment of a deposit by a savings bank “ unless the passbook of the depositor be produced and the proper entry be made therein at the time of payment.” The board of trustees' of a bank is empowered to make payments in cases of the loss of a passbook where the production would seriously inconvenience the depositor. The Superintendent of Banks may overrule the modifying provision if he deems it to be improper. The subdivision then states, “ Payments, however, may be made upon the judgment or order of a court. ’ ’ The latter enactment gives jurisdiction to our courts to exercise equitable powers and to modify the terms of the agreement between the savings bank and the depositor in the event the facts justify the giving of such relief. Respondent states in her affidavit that “ Early in November, 1937, deponent lost said passbook, together with other personal articles, out of her purse.” The lapse of time, with no demand upon the bank, sustains the exercise of the statutory power granted to the court to modify the terms of the contract.
Krupp v. Franklin Savings Bank (255 App. Div. 15) which granted relief to the depositor only upon condition that the indemnifying bond be furnished, was apparently decided just prior to the statutory amendment which, for the first time, permitted payments to be made upon the judgment or order of a court. (L. 1938, ch. 352.) As the bank, under its by-laws, could make payment only upon the judgment or order of a court, I believe there should be no costs at Special Term or in this court.
All concur in decision except Hill, P. J., who dissents as to the allowance of costs.
All concur in opinion by Foster, J., except Hill, P. J., as to costs, and in a separate memorandum.
Order and judgment affirmed, with costs.