#### Sarah B. Gammond, Resp’t, *v.*The Bowery Savings Bank, App’lt.1

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

Savings banks—Rules in pass-book do not pbevent assignment by DEPOSITOS.

The rules contained in the pass-book of a savings bank as to the manner of withdrawing deposits relate to the dealings between the bank and the original depositor, and do not prevent the latter from passing the demand by general or specific assignment, gift, bequest or operation of law, appointment of receiver or other legal way.

Appeal from an order of the general term of the city court and the judgment entered thereon, affirming a judgment of that court in favor of the plaintiff.

*Carlisle Norwood Jr.,*for app’lt; *Cromwell G. Macy,*for resp’t.

1

 Affirming 26 N. Y. State Rep., 930.

Bookstaver, J.

The original action was tried by Judge Ehrlich at a trial term of the city court with a jury, but after the testimony was all in, the parties consented to the discharge of the jury and the case was submitted to the judge to be determined on both the law and the facts, and a verdict directed as if the jury were present. There was little or no contradiction in . the testimony. From that it appears that on or about the 2d of September, 1875, one Michael Galliger opened an account with the defendant, and received thereof a pass-book in the usual form. Thereafter Galli.ger withdrew from defendant’s keeping $44.53, leaving due from defendant upon January 1, 1877, the sum of $440. Before the commencement of the action Galliger gave, assigned arffi transferred to the plaintiff all his right, title and interest in the indebtedness of the defendant, together with the bank-book.

*137It appeared from the testimony that this was a gift *inter vivosr*and that subsequently thereto Galliger died. Thereafter the plaintiff, through her attorney, demanded payment of the sum on deposit, explaining the circumstances under which she came in possession of the book to an officer of the bank, who thereupon refused to pay the same. On the trial the defendant relied upon the following rules of the bank as sufficient grounds for the refusal to pay: “8. Drafts sent by mail or otherwise will not be entitled to payment unless the deposit book is produced, and the depositor sends, by letter accompanying the draft, correct answers, to the questions asked when the first deposit was made in the bank. 6. On the decease of the depositor the amounts standing to the credit of the deceased shall be paid to his or her legal representatives. 7. Drafts may be made personally, or by the order, in writing, of the depositor if the bank have the signature of the party- on their signature book, or by letters of attorney duly authenticated.” These rules clearly relate to the dealings between the bank and the original depositor, and do not contemplate a case like the present, of an assignment or gift *inter vivas*even if the mere acceptance of a pass-book containing the by-laws constitutes a contract between the parties. *Smith*v. *Brooklyn Savings Bank,*101 N. Y., 60. These rules do not prevent a creditor from passing the demand by general or specific assignment, by gift, bequest or operation of law, appointment of a receiver or in any other legal way that may arise. It is obvious it would be impossible in many instances for an assignee or other stranger coming into the lawful possession of the pass-book to answer the test questions contemplated by § “ 8,” nor do any of the rules prescribed by the bank determine the nature of the evidence which shall be given it of such gift, assignment, transfer, etc.- The relation between defendant and Galliger was that of debtor and creditor, and the gift being conceded by the defendant, the plaintiff has succeeded to all the titles and rights of Galliger. Such being the case, we do not see why the judgment rendered was not entirely proper.

Upon the argument it was strongly contended that the plaintiff should have procured the appointment of the public administrator • upon the estate of Galliger, and that through him the demand should have been made. But obviously this is unnecessary, and would have been unavailing as a protection to the bank, as is shown in the recent case of Walsh against the present appellant, for in that case the payment was made to the administrator of the depositor, and yet the defendant was compelled to pay the claim to the owner of the bank-book, who received it as a gift. Besides, the gift from Gallagher to the plaintiff having been made before the death of the latter, the title was in her from that time on, and there would have been no title in the public administrator to the funds in the hands of the bank after his death.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.