Joseph T. King, as Collector of the Personal Property Assets of the Estate of Henry A. McDonald, Deceased, Respondent, v. Manufacturers Trust Company, Appellant

Joseph T. King, as Collector of the Personal Property Assets of the Estate of Henry A. McDonald, Deceased, Respondent, v. Manufacturers Trust Company, Appellant. [MAJORITY] Appeal from a judgment of the Supreme Court in favor of plaintiff, entered March 7, 1951, in Hew York County, upon a verdict rendered at a Trial Term. Judgment affirmed, with costs. [DISSENT — Peck, P. J.] Peck, P. J. (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.