of tbe deposit to tbe plaintiff's use, by tbe direction of tbe depositor. Tbe agreement has been fully executed on the part of tbe plaintiff by bis entering into tbe proposed obligation to Shaw. It would be a fraud upon him to release tbe defendant from its part of tbe agreement, and tbe bank is therefore estopped from setting up a mere want of power. (Whitney Arms Co. v. Barlow, 63 N. Y., 62.)
It was not necessary or proper for tbe plaintiff to set out tbe impbed promise of tbe defendant in tbe complaint. It was enough to allege tbe facts out of which tbe implication arises. (Eno v. Woodworth, 4 Comst., 249; Glenny v. Hitchins, 4 How. Pr., 98; Cropsey v. Sweeney, 27 Barb., 310; Moak's Van Santvoord's Pl. [3d ed.], 186, and cases there cited.)
These views, if correct,' dispose of tbe several positions taken by tbe learned counsel for tbe respondent.
Tbe judgment appealed from should be reversed, and judgment ordered for tbe plaintiff on tbe demurrer, with leave to tbe defendant to answer in twenty days, on payment of tbe costs of tbe demurrer and of this appeal.
Mullin, P. J., and Talcott,' J., concurred. Ordered accordingly.