(after stating the facts as above). [1, 2] The question as stated in St. Louis & San Francisco Railroad v. Johnston, 133 U. S. 566, 576, 10 Sup. Ct. 390, 33 L. Ed. 683, is in principle only a question of fact; i. e., whether the bank, on receiving the check, intended to become the owner and give the depositor an immediate credit, or whether the intent was that the bank should hold the checks for collection, and that, the depositor should have no credit until the proceeds were received. It is pretty generally accepted law that, where nothing appears but the receipt of the checks indorsed in blank or for deposit, and an immediate credit in the passbook to the depositor, the checks at once become the property of the bank and cannot be followed. Metropolitan National Bank v. Loyd, 90 N. Y. 530; Lyons v. Union Exchange Bank, 150 App. Div. 493, 135 N. Y. Supp. 121; Cragie v. Hadley, 99 N. Y. 131, 133, 1 N. E. 537, 52 Am. Rep. 9 (obiter); St. Louis & San Francisco R. R. Co. v. Johnston (C. C.) 27 Fed. 243; Brooks v. Bigelow, 142 Mass. 6, 6 N. E. 766. The bank’s right, however, depends upon the depositor’s immediate and unconditional right, and not merely as a favor, to draw upon the deposit, and if it appears that the depositor did not have such right until collection the bank does not become the owner. Scott v. Ocean Bank, 23 N. Y. 289; King v. Bowling Green Trust Co., 145 App. Div. 398, 129 N. Y. Supp. 977; Beal v. Somerville, 50 Fed. 647, 1 C. C. A. 598, 17 L. R. A. 291; Re State Bank, 56 Minn. 119, 57 N. W. 336, 45 Am. St. Rep. 454; Balbach v. Frelinghuysen (C. C.) 15 Fed. 675. Beal v. Somerville, supra, indeed, throws a little doubt upon the general rule, and seems to imply that the presumption is that the bank receives for collection unless the contrary appear. Where the checks are indorsed for collection only the case is of course beyond any question; for example, in Balbach v. Frelinghuysen, supra, where the indorsement was for collection, but the depositor could draw at once, the indorsement prevailed.

*634[3] Applying these rules to the case at bar, it is quite clear that the private bankers would have become the owners of the checks at once, but for the provision in the passbook, “Deposits of checks shall not be drawn against until collected.” In Attie Bros.’ case, the receiver alleges that this provision was waived and that the depositor was expressly given the right to draw at once. It will not be enough, however, merely to show that the bank had permitted the depósitors to draw. Nothing short of an agreement, express or implied by the course of dealing, to' modify the passbook, will answer. On this issue of fact the receiver is entitled to be heard, and there must be a reference. At the time of the reference, if the receiver makes good his claim that the provision in the passbook was expressly modified, it will have to be determined whether the private bankers were insolvent, and knew of their insolvency at the time of receiving the checks. If so, under well-established principles, the receiver cannot hold the proceeds.

The order will be. for the petitioner on the Bortz petition, and for a reference on the Attie Bros, petition. The matter of the rent deposit was disposed of on the argument.