The opinion of the court was delivered by: COOPER
This is a suit by the receiver to recover from the defendant bank $3,794.72, with interest thereon from the 31st day of April, 1931. Jury trial was duly waived. The facts are stipulated.
This sum is the amount of a draft drawn by one Ella H. Barker on her special interest account in the First National Bank of Mechanicville, N.Y., evidenced by passbook No. 1686.
Prior to the transaction hereinafter referred to, relating to draft drawn upon plaintiff bank by said Ella H. Barker, there was on deposit in said defendant bank to the credit of plaintiff bank the sum of $45,444.40.
On June 20, 1931, and for a long time prior thereto, it was the custom and practice between plaintiff bank and defendant bank, with reference to said account, for defendant to send to plaintiff bank, for collection, checks, notes, and other forms of commercial paper drawn upon or payable at other banking institutions, and for defendant to send to plaintiff bank, for payment, checks, notes, and other forms of commercial paper drawn upon or payable at plaintiff bank, the proceeds of which were charged by defendant to said account of plaintiff bank, which was the method by which said proceeds were paid to defendant and, by agreement between plaintiff bank and defendant, such checks, notes and other forms of commercial paper sent by defendant to plaintiff bank, as aforesaid, might be charged to said account the day received by plaintiff bank in the regular course of transit by mail, which was the first business day following the forwarding thereof by defendant to plaintiff bank by mail, subject, however, to a correction entry or cancellation of such charge to the plaintiff bank in the event that any such check, note, or other form of commercial paper should not be paid to the plaintiff bank.
It was the custom and practice between plaintiff bank and defendant, with reference to said account between said banks, for defendant, on the last day of each month, to send the plaintiff bank by mail a written statement of the said account showing the transactions therein during the said month, and for plaintiff bank to examine said statement upon receipt thereof and deliver to defendant a reconcilement in writing of any differences in amount which might exist on the books of plaintiff bank from the amounts as shown on said statement.
On June 19, 1931, the said Barker drew a draft on the plaintiff bank for said sum, the same being the full amount of such account. Such draft, together with the passbook, was delivered by Barker to the Albany Savings Bank on that date. On the same day the Albany Savings Bank forwarded said draft and passbook to the defendant for collection. The defendant on the same day forwarded by mail the passbook and draft to the plaintiff bank for payment, together with a collection letter. They were received by the plaintiff bank on the morning of June 20, 1931.
When the said draft and passbook were received by plaintiff bank on Monday June 20, 1931, the amount of said draft was charged to the account of said Barker and credited to the account of defendant on the books of the plaintiff bank, and said collection letter, said draft, and said passbook were stamped "Paid" by plaintiff bank, all of which occurred prior to the closing of plaintiff bank, and said collection letter was deposited in the mail in an envelope addressed to defendant, which was the usual method of advice of payment between said banks, which said envelope was deposited in the mail at Mechanicville, N.Y., after 12 o'clock noon of said day, which was Saturday, and was received by the defendant on Monday, June 22, 1931, at which time the amount stated in said collection letter, to wit, $3,794.72, would ordinarily, in accordance with the custom and practice between plaintiff bank and defendant with reference to said accounts between said banks, have been charged by the defendant to the account of the plaintiff bank. Said amount was not then so charged to plaintiff bank on the books of the defendant.
The hours of the plaintiff bank on June 20, 1931, which was Saturday, were from 9:00 a.m. to 12:00 m. and from 7:00 p.m. to 9:00 p.m. Plaintiff bank was open from 9:00 a.m. to 12:00 m. on the June 20, 1931, and at 5:00 p.m. on the same day the bank was closed by order of the board of directors on the ground that it was insolvent.
Immediately after the action of the board of directors of said bank, one A. N. Douglas, who was a national bank examiner under the Comptroller of the Currency of the United States, took charge of the affairs of said bank.
After the close of the said bank on June 20, 1931, and on the same day, the said Douglas informed the defendant bank that the plaintiff bank had been closed by order of the board of directors.
On June 30th, 1931, defendant forwarded to plaintiff bank a written statement of said account as of said date, upon which statement the amount of said Barker draft had not been charged by defendant to said account of plaintiff bank, and on July 1, 1931, said A. N. Douglas forwarded to defendant a reconcilement in writing of the books of the plaintiff bank and of said statement of June 30, 1931, upon which reconcilement statement the sum of $3,794.72, which was the amount of the draft drawn upon the plaintiff bank by said Barker, was credited to the defendant, said amount not having been charged to said account of plaintiff bank on defendant's statement.
Said reconcilement statement was received by defendant on July 3, 1931, and defendant thereupon paid to said Albany Savings Bank of Albany, N.Y., the said sum of $3,794.72, which was the amount of the draft drawn upon the plaintiff bank by the said Barker.
Said draft drawn by the said Barker as aforesaid and said passbook No. 1886 have never been returned to defendant by plaintiff or plaintiff bank. No claim against the plaintiff as receiver has been filed for the amount of said draft by the said Barker or any one claiming under her or by the defendant. Dividends of 59 per cent. have been declared and paid on all claims against plaintiff ...