(dissenting). In the face of an admirable charge by the court, which so carefully delineated the issues for the jury, I would not dissent did I think that the evidence left a jury issue. In my opinion, however, defendant bank was entitled to the benefit of subdivision 3 of section 134 of the Banking Law and its own practice and advice to its depositor in accordance therewith requiring the submission of the passbook for transfer of the account. I think that upon all the facts the defendant was not chargeable with negligence and further that there was in effect a condoning and ratification of the withdrawal that was made by plaintiff’s wife. The claim does not appear to me to be just on the merits or supportable in law. I therefore dissent and vote to dismiss the complaint.
Dore, Breitel and Bastow, JJ., concur in decision; Peek, P. J., dissents and votes to dismiss the complaint, in opinion in which Cohn, J., concurs.
Judgment affirmed, with costs. Ho opinion.