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19. A specific and peculiar state of facts as to transfer of deposit and death of the depositor examined. O'Brien v. Elmira Savings Bank, 99 App. Div. 76. 20. As to delivery of pass book to sustain gift, see note to 19 L. R. A. 700. 21. Where a depositor by his negligent care of his pass book brings about a condition making unwarranted drafts possible, the loss is on him primarily, unless the bank's officials have been negligent. Campbell v. Schenectady Savings Bank, 114 App. Div. 337.

22. As to payments to fraudulent claimants see 69 L. R. A. 317, note.

23. Where a forged check is presented, and the teller notices a dissimilarity between the questioned signature and the filed signature, and the treasurer orders payment without further investigation, such payment may be recovered by the depositor from the bank for such negligence.

Arbitrary rules of the bank will not avoid its liability for failure to exercise proper care when suspicion is aroused. Gerardi v. N. Y. Savings Bank, 58 Misc. 183.

24. A depositor of a savings bank may assign his deposit for a valuable consideration without the delivery of the pass book. Augsbury v. Shurtliff, 114 App. Div. 626.

25. Where a bank is ignorant of the death of a depositor, and the pass book and a forged draft are presented and paid, the bank is not liable if, due and ordinary care is used. Failure to compare the filed signature with the forged one is not due care. Kelly v. Buffalo Savings Bank, 180 N. Y. 171.

26. Where a deposit is in joint names and the intent to create a joint ownership appears, the survivor becomes owner of the entire fund without regard to the possession of the pass book. Farrelly v. Empire Indust. Savings Bank, 92 App. Div. 529.

27. As to care of bank in investigating as to forged order under special circumstances, see Ferguson v. Harlem Savings Bank, 43 Misc. 10.

28. An account "payable to either or survivor" opened by a husband and wife with husband's money, is subject to draft by either and on the death of one becomes the absolute property of survivor. Moore et al v. Smith, 131 App. Div. 399.

29. After an order of interpleader in city court of the city of New York the action may proceed there under the authority of this section (115), notwithstanding § 820 of Code Civ. Proc. Gottschall v. German Savings Bank, 45 Misc. 27.

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§ 145. Wife witness against husband; claimants may be interpleaded. In all actions in any court of this state against any sav ings bank by a husband to recover for moneys deposited by his wife in her own name, or as her own money, the wife may be examined and testify as a witness in like manner as if she were an unmarried

woman.

In all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons, not parties to the action, who claim the same fund, the court in which the action

is pending, may, on the petition of such savings bank, and upon eight days' notice to the plaintiff and such claimants, make an order amending the proceedings in the action by making such claimants parties defendant thereto; and the court shall thereupon proceed to determine the rights and interests of the several parties to the action in and to such funds.

The funds on deposit which are the subject of the action may remain with such savings bank upon the same interest as other deposits of like amount to the credit of the action, until final judgment therein, and the same shall be paid by such savings bank in accordance with the order of the court; or the deposit in controversy may be paid into court to await the final determination of the action; and when so paid into court the corporation shall be stricken out as a party to any such action, and its liability for such deposit shall

cease.

The costs in the actions referred to in this section shall in all cases be in the discretion of the court, and may be charged upon the fund affected by the action. The statutes limiting the time within which actions shall be commenced shall have no application to actions brought by depositors, their representatives or assigns, against savings banks for deposits made therein.

(Former section 115; R. S., 1567, L. 1882, ch. 409, § 259.)

1. A savings bank pass book is not negotiable paper, and its possession, in itself, constitutes no evidence of a right to draw money thereon. It merely imports a liability of the bank to the depositor for the money deposited, and an agreement to pay it at such time and in such manner as he shall direct.

The defendant paid a depositor's money to a stranger who had possession of his pass book, and sought to justify such payment under a by-law printed in the pass book at the time it was delivered to the depositor, as follows: "All deposits and drafts must be entered in the pass book at the time of the transaction, and all payments made by the bank upon the presentation of the pass book entered therein will be regarded as binding upon the depositor. Money may also be drawn upon the written order of the depositor or his attorney, when accompanied by the pass book."

Held, that assuming that the mere acceptance by the depositors of a pass book containing a by-law regulating the manner of making deposits and payments constituted a contract between the parties. Yet the by-laws referred to could not be construed to justify a payment to a third party unless a written order accompanied the pass book. Smith v. Brooklyn Savings Bank, 101 N. Y. 58, 54 Am. Dec. 653, 4 N. E. 123, distinguishing Schoenwald v. Metropolitan Bank, 57 N. Y. 418. See Crawford v. West Side Bank, 100 N. Y. 51, 53 Am. Rep. 152, 2 N. E. 881.

2. Neither the rule as to payment to one producing book, nor § 115 (now 145), justify refusal to pay one to whom deposit account was given before depositor's death. Cosgriff v. Hudson City Savings Inst., 24 Misc. 4, 52 N. Y. Supp. 189.

3. This right of interpleader does not apply when the persons claiming the funds have only a future interest. Gifford v. Oneida Savings Bank, 99 App. Div. 25.

4. It is discretionary with the court to refuse this interpleader. Steiner v. East River Savings Bank, 60 App. Div. 232; McGuire v. Mt. Auburn Savings Bank, 78 App. Div. 22.

§ 146. In what securities deposits may be invested. — The trustees of any savings bank may invest the moneys deposited therein and the income derived therefrom only as follows:

1. In the stocks or bonds or interest-bearing notes or obligations of the United States, or those for which the faith of the United States is pledged to provide for the payment of the interest and principal, including the bonds of the District of Columbia.

2. In the stocks or bonds or interest-bearing obligations of this state, issued pursuant to the authority of any law of the state.

3. In the stocks or bands or interest-bearing obligations of any state of the United States which has not within ten years previous to making such investment by such corporation defaulted in the payment of any part of either principal or interest of any debt authorized by the legislature of any such state to be contracted; and in the bonds or interest-bearing obligations of any state of the United States, issued in pursuance of the authority of the legislature of such state, which have, prior to May twenty-ninth, eighteen hundred and ninetyfive, been issued for the funding or settlement of any previous obligation of such state theretofore in default, and on which said funding or settlement obligation there has been no default in the payment of either principal or interest since the issuance of such funding or settlement obligation, and provided the interest on such funding or settlement obligation has been paid regularly for a period of not less than ten years next preceding such investment.

4. In the stocks or bonds of any city, county, town or village, school district bonds and union free school district bonds issued for school purposes, or in the interest-bearing obligations of any city, county, town or village of this state, issued pursuant to the authority of any law of the state for the payment of which the faith and credit of the municipality issuing them are pledged.

5. In the stocks or bonds of any incorporated city situated in one. of the states of the United States which was admitted to statehood prior to January first, eighteen hundred and ninety-six, and which, since January first, eighteen hundred and sixty-one, has not repudiated or defaulted in the payment of any part of the principal or interest of any debt authorized by the legislature of any such state to be contracted, provided said city has a population, as shown by the federal census next preceding said investment, of not less than fortyfive thousand inhabitants, and was incorporated as a city at least twenty-five years prior to the making of said investment, and has not, since January first, eighteen hundred and seventy-eight, defaulted for more than ninety days in the payment of any part either of principal or interest of any bond, note or other evidence of indebtedness, or effected any compromise of any kind with the holders thereof. But if, after such default on the part of any such state or city, the debt or security, in the payment of the principal or interest of which such default occurred, has been fully paid, refunded or compromised by the issue of new securities, then the date of the first failure to pay principal or interest, when due, upon such debt or security, shall be taken to be the date of such default, within the provisions of this subdivision, and subsequent failures to pay instalments of principal or interest upon such debt or security, prior to the refunding or final payment of the same, shall not be held to continue said default or to fix the time thereof, within the meaning of this subdivision, at a date later than the date of said first failure in payment. If at any time the indebtedness of any such city, together with the indebtedness of any district, or other municipal corporation or subdivision except a county, which is wholly or in part included within the bounds or limits of said city, less its water debt and sinking funds shall exceed seven per centum of the valuation of said city for purposes of taxation, its bonds and stocks shall thereafter, and until such indebtedness shall be reduced to seven per centum of the valuation for the purposes of taxation, cease to be an authorized investment for the moneys of savings banks, but the superintendent of banks may, in his discretion, require any savings bank to sell such bonds or stock of said city as may have been purchased prior to said increase of debt.

6. In bonds and mortgages on unincumbered real property situated

in this state, to the extent of sixty per centum of the value thereof. Not more than sixty-five per centum of the whole amount of deposits shall be so loaned or invested. If the loan is on unimproved and unproductive real property, the amount loaned thereon shall not be more than forty per centum of its actual value. No investment in any bonds and mortgages shall be made by any savings bank except upon the report of a committee of its trustees charged with the duty of investigating the same, who shall certify to the value of the premises mortgaged or to be mortgaged, according to their best judg ment, and such report shall be filed and preserved among the records of the corporation. Also in the following securities:

(a) The first mortgage bonds of any railroad corporation of this state, the principal part of whose railroad is located within this state, or of any railroad corporation of this or any other state or states connecting with and controlled and operated as a part of the system of any such railroad corporation of this state, and of which connecting railroad at least a majority of its capital stock is owned by such a railroad corporation of this state, or in the mortgage bonds of any such railroad corporation of an issue to retire all prior mortgage debt of such railroad companies respectively; provided that at no time within five years next preceding the date of any such investment, such railroad corporation of this state or such connecting railroad corporation respectively shall have failed regularly and punctually to pay the matured principal and interest of all its mortgage indebtedness, and in addition thereto regularly and punctually to have paid in dividends to its stockholders during each of said five years an amount at least equal to four per centum upon all its outstanding capital stock; and provided, further, that at the date of every such dividend the outstanding capital stock of such railroad corporation, or such connecting railroad company respectively, shall have been equal to at least one-third of the total mortgage indebtedness of such railroad corporations respectively, including all bonds issued or to be issued under any mortgage securing any bonds in which such investment shall be made.

(b) The mortgage bonds of the following railroad corporations: The Chicago and Northwestern railroad company, Chicago, Burlington and Quincy railroad company, Michigan Central railroad company, Illinois Central railroad company, Pennsylvania railroad

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