(dissenting):
The bank was justified in demanding, in legal form, proof of the identity of the testatrix. She had deposited her money under an assumed name, her name after her decease being very different. The statute discussed by the presiding justice contemplates two claimants for the fund, which is not a feature of this case, and I think it does not apply. The bank, in protecting its depositors by refusing payment until judgment, was entitled to indemnity. This necessity was caused by the depositor, and her estate should bear the burden. It is proper, therefore, that the plaintiff’s costs should be paid out of the fund, and such should be the order herein. Such a ruling is within the spirit of the case of Bushnell v. Chautauqua County National Bank (74 N. Y., 291).
Judgment affirmed.