Kavanaugh v. Gould

Smith, P. J.: In Cassidy v. Uhlmann (170 N. Y. 505) the opinion in part reads: “The board of directors of a bank has the general superintendence and active management of all its concerns, and, for all practical purposes, the board is the corporation. As a‘ general rule a board of directors must act as a board. But, since directors do not exercise a delegated authority in the sense which applies to other officers and agents, it is clear that a board of directors may delegate some of its powers to committees and -.individuals selected from the board. This is common practice in the management of banks as well as other corporations. Since a board of bank directors is composed of individuals it is manifest that each director sustains a distinct relation, not only to his bank, but to its stockholders and depositors. For obvious reasons the duties which attach to this relation cannot be precisely defined. They cannot be the same under all circumstances; nor can they be imposed with unvarying exactness upon all directors alike, ” By the evidence of. the plaintiff’s witness Krech it appears to be the custom of banks in New York city to intrust to the executive committee of the board the supervision of the detail management of the corporation,; The directors generally not upon the executive, committee are not sunnosed to have knowledge of the details of the business-managernent of the corporation which are not submitted—to—them.' In other words, it is not their custom to actively search the individual transactions- in a bank that they may "learn the responsibility of its debtors, or the nature or value of the collateral. This they intrust, first, to the executive officers of the bank, who are carefully chosen and paid for their services; secondly, to the supervision of the executive committee of their body, which is chosen with a special reference to this duty, and to which committee must be reported weekly all the transactions of the hank. This custom, however does not relieve directors generally of all responsibility. If the by laws require monthly meetings tií^mustlñake diligent effort to be present thereat. They must give their best efforts to advance the interest of the corporation, both by advice and counsel and by active work on behalf of the corporation when such work may be assigned to — 289 — them. If at their meetings, or otherwise, information should come to them of irregularly in the proceedings of the hank they are hound to take steps to correct those irregularities. Tire law has no place for dummy directors. They are bound generally to use every effort that a prudent business man would use in supervising his own affairs, with the right, however, ordinarily to rely upon the vigilance of the executive committee to ascertain and report any irregularity or improvident acts in its management. And this custom is but the outgrowth of the necessities of the situation. In the first place it is not a practical proposition to commit the supervision of the details to twenty-five men. A smaller number would do the work more efficiently. Responsibility would be greater because not so scattered. Again, business men of New York are probably the busiest men in the world. They have large business enterprises in which their first interest lies and to which their first duty belongs. Most of them are directors of more than one corporation, and some of them of many. If they are compelled to supervise the detail management of each corporation in which they are directors, or if they are deemed to have constructive knowledge of such facts as would be acquired by such supervision, it would be wholly impossible for them to accept such a trust. They cannot give the time to watch the small every-day transactions of the corporation, and if chargeable with such knowledge as would be acquired therefrom the risk is too great for them to run. They are then in effect made answerable for the neglect of the executive committee to which is given this duty of supervision. Plaintiff’s contention is that they must not then accept the position of director. .The obvious answer to this contention is that the corporation cannot afford to tose them. One of the best assets of a corporation is the advice and assistance of men of business experience and of large business connections upon its board. Their advice and assistance are of . inestimable value in all emergencies and in determining the policies of the corporations and in counsel upon the more important questions that arise. Any construction of the law that would make it impossible for such men to accept positions upoh various boards of directors would — 290 — seriously impair both the effectiveness and stability of corporations, in fact be little less than calamitous, But "plaintiff contends further that this rule of responsibility leaves the stockholder at the mercy of the executive officers of the corporation. Not at all. To the members of the executive committee is assigned the duty of detail supervision. With this duty they are bound to be on their guard to detect any irregularities or improvident acts on the part of the executive officers.' They are required to scan critically the detailed reports which are made to them by such officers. Thepliljgence_requ-ired-.of-.them is.-therefore., greater, a,nd__the rule of their-liability more, strict- than that--of.-a-d-i-rec-for._not a mpmber of_.that„committe.e, for_to_ them-not._only do the stockholders look for protection, but the directors themselves. and-u-pou-tbeir fidelity to thei-r -commission alb partiesjmust rely. Moreover, twice each year an expert examination is made of the condition of the trust company, and of its results all directors must take cognizance. Plaintiffis.assertion that the directors may dnleg.a±.e--to_theexecutive„.cqmpiittee their work but not-their responsibility- -is- not in accord--w-itEPthe"glawIdf this State. If they may delegate the work they are* not responsible for its ■negligent performance, and this principle is not new to the law of trusts. It is ruled in New York State that á trustee- is not liable for the breach of trust of his cotrustee of which he was not cognizant, or in which he did not participate, as to property which comes lawfully into his cotrtistee’s hands. He may passively allow his cotrustee to take full control and yet not be liable for his devastavit. The responsibility is more strictly held in England and in Pennsylvania. In 1 Perry on Trusts (6th ed. p. 667, note “A”) it is Said: “In the administration and managepient of the affairs of a trust it is usually impracticable for every trustee to actually participate, in every act. To some extent they may delegate to each other the merely ministerial duties of management, and each is entitled to rely upon the honesty and prudence of the other unless he has notice of facts which should lead him to distrust the°other. ” In Croft v. Williams (88 N. Y. 388) the opinion in part reads: “One, therefore, may sit passive and see the other receive funds of the estate, arid making no objection be deemed to assent, but — 291 — that does not make him responsible for what, has been received. He must in some manner know and assent to the misapplication, he must be a consenting party to the waste, or neglect some duty consequent upon his knowledge of a misapplication intended or in progress. (Williams v. Nixon, 2 Beav. 472.) A wrong done or a duty omitted must lie at the foundation of his liability.” In Sutherland v. Brush (7 Johns. Ch. 22) I quote from the opinion: “The defendant P. is not responsible for the devastavit of his coexecutor 0., any "further than he is shown to have been knowing and assenting, at the time, to such devastavit or misapplication of the assets of the estate. Both the executors could not, with any kind of convenience, jointly possess and hold all the assets. The assets must, from the necessity and reason of the case, have been distributed between the executors for the purpose of collection and security; and it appears to be settled, and upon very just principles, that one executor shall not be chargeable with the waste of the other, except so far as he concurred- therein; and that merely permitting the other to possess the assets, without going further, and concurring in the application of them, does not render him answerable for the receipts of the other.” This rule is further held in Cocks v. Haviland (124 N. Y. 431); Wilmerding v. McKesson (103 id. 340); Ormiston v. Olcott (84 id. 346). While these cases are not precisely analogous to the case at bar they establish the rule that among trustees there may be a division of duties' arising out of the necessities of the case, and after that division one trustee is not responsible without knowledge for the acts of his cotrustee. As applied to the case at bar, as far as these directors are trustees for these stockholders, a division may be made both of duty and responsibility, and the directors generally are not liable for the negligence of the members of the executive committee, as they would in effect so be if they were chargeable with all the knowledge which might be imputable to a member of the executive committee, by reason of his supervision of the detail management of the corporation. This distinction between the diligence required of a director generally and a member of the executive committee is not only shown by the evidence in the case to be the custom in banks in — 292 — the city of New York, not only does it appear to be a reasonable and sane distinction, but it is clearly recognized in the by-laiys of this corporation itself, which were made by these very stockholders here complaining, and afterwards ratified by the board of directors. In fact these stockholders might make-any requirement that they should see fit in their by-laws regulating the duties of the directors, which would be binding upon, the directors, and are not subject to modification or veto by the directors themselves. Those by-laws provide for the executive committee to be composed of six members of the board of directors in addition to the president. ■ To that executive committee is given all the powers of the board of directors when the board- is not in,session, except the power to fill a vacancy in the board. The assent of that executive committee is required “ for all investments that shall be made of the funds of the company in stocks, personal securities and bonds and mortgages, and for the disposal 'of the same, and of the funds of all special trusts,” No guardianship, receivership or'other special trust can be accepted by the president without either their approbation or that of the board of directors,- unless it be ordered by a court or surrogate having jurisdiction. The executive committee may in its discretion authorize the president generally to make' investments in such securities as are authorized by the charter of the' company, and to dispose of such securities, without previously consulting as -to details with .the committee; -but all such transactions shall be reported to the committee at its next meeting. No disbursements, except for current expenses or. for an amount not to exceed $200, shall be made without being reported to the' executive committee for approval. The executive committee is required to meet at the main office of the company on Tuesday of each week, and also meet at other times on the call of the president. Section 5 requires that “regular minutes of the proceedings of the executive committee shall be- kept, and shall always be open to- the inspection of' .any director; and the minutes of the meetings of the preceding month shall be read at each monthly meeting of the board.” All through the by-laws is clear evi- ' dence of a specific supervision given to the executive committee, of which; the directors generally are relieved. In accord — 293 — anee with those provisions reports were made weekly to the executive committee of loans proposed and loans made. Whilé the by-laws required that the minutes of the meeting of the .executive committee should be before the board of directors, those minutes need not necessarily show specific loans proposed or loans made. There is nothing in the by-laws which would require the executive committee or any officer of the trust company to report to the directors any of the detail of its business management. '■ These by-laws, therefore, recognize clearly a difference between the supervision to be assumed by members of the executive committee and members of the board of directors generally. Finally this principle has received legislative recognition. By chapter 155 of the Laws of 1908 section 39a was added to the Banking Law (Gen. Laws, chap. 37; Laws of 1892, chap. 689), which was re-enacted by section 42 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10). Said section was made to read in substance: “The directors or trustees * * * shall by resolution duly recorded in the minutes of the proceedings of such corporation designate an officer or officers whose duty it shall be to prepare, and submit to each director or trustee at each regular meeting of the board, or to an executive committee of not less than five members of such board, a written statement of all purchases and sales of securities, and of every discount and loan, exclusive of discounts and loans of less than one thousand dollars, made since the last regular meeting of the board, describing the collateral to the loans so made as of the date of the meeting at which such statement is submitted.” This statement is required to contain other details also. (See, also, Laws of 1911, chap. 708, amdg. said § 42.) But the significance of the provision is that the directors may by resolution provide that this detailed information should, instead of being given to the board itself, be given to an, executive committee of not less than five members. The necessary inference follows that the directors not upon the executive committee are not chargeable with knowledge of detail management, which need be reported only to the executive committee. So that the distinction which I have sought to deduce from reason and judicial authority is now made part of our statutory law. — 294 — Before discussing the facts as hearing upon the liability of the respective defendants, it may be well to call attention to a general rule of law which is here applicable. That rule of law charges a party guilty of negligence only with the loss caused by that negligence. Whatever punishment there may be aside from civil liability must rest in the criminal law. The liability of these defendants for the losses with which they have been charged can only be sustained. if such losses were caused by their negligence. In Bloom v. National United Benefit Savings Co. (81 Hun, 120, 127) it is held that directors are liable only for loss of its funds attributable to their negligence. To this is cited Briggs v. Spaulding (141 U. S. 132) and Arthur v. Griswold (55 N. Y. 400). The Bloom case is affirmed in the Court of Appeals in 152 New York, 114. It is unnecessary to cite further authority, as this proposition is distinctly asserted both in.the opinion of the Trial Term (See Kavanaugh v. Commonwealth Trust Co., 64 Misc. Rep. 303) and in the brief of respondent’s counsel, so that it stands here unquestioned. The makers upon the notes, for loss upon which these defendants have been charged, were all of them abundantly responsible financially. The shipbuilding bonds which were offered as collateral were being readily sold in New York and purchased by the leading financiers of the city at prices which made them apparently abundant security for the notes for which they were collateral. The moneys loaned upon these-notes were all passed directly to the credit of the shipbuilding company upon the trust company’s books, and went to strengthen and make secure the very bonds that were held as collateral. These underwriting agreements, all of them, contained the provision that they were to be void unless the $9,000,000 contemplated to be sold was entirely underwritten. So that if there should be any failure to procure the $8,100,000, which was "contemplated to be procured upon the sale of this $9,000,000 of bonds, the moneys would be in the vaults of the trust company subject to the claim of the trust company thereupon as a first equity. These moneys were, therefore, all retained by the trust company itself until the full amount should, be raised, the various properties purchased and the bonds made of substantial worth. With the responsibility of the makers — 295 — of the notes conceded, and with the value of the bonds attested by repeated purchases by leading financiers in New York, city, it cannot be held to be an act of negligence upon the part of any director to sanction the loan of the moneys under the circumstances and in the way in which it was thus loaned. Nor could the plaintiff himself or anybody question the , act of the directors in sanctioning such a loan, except for facts which afterwards developed, of which the directors had no knowledge at the timé that the loans were made, and of which' they could not by active diligence have obtained knowledge. It seems that in the early part of 1903 Bruckman and White and the other makers of these notes' claimed in some way that they had been misled in the making of these underwriting agreements, and demanded that they be released from personal liability upon these notes. The learned trial judge has found that their claim was that they were misled by false representations in a prospectus which was issued 'by the trust company upon the sale of these bonds. This finding is not supported by the evidence. There is no evidence anywhere in the case which shows that their claim was based upon. any misrepresentations in the prospectus. The inference of' the trial justice is wholly unjustified. The evidence is not clear as to just what was the nature of their claim. The only light thrown upon the nature of that claim lies in the agreement for the release of Bruckman, wherein it is recited: “ Whereas, said Bruckman agreed to underwrite and' purchase said securities subject to a loan of One hundred and Forty-nine thousand Two hundred dollars ($149,200), with interest at five per cent per annum, for the repayment of which loan he was not to become personally liable, the said Trust Company looking to the securities only for eventual paymentT This paper between the trust company and Bruckman, executed upon January 27, 1903, would seem to indicate that he and the others had been promised immunity from personal liability by Dresser, or some one in his behalf, which 'promise was wholly unknown to Satterlee or to any other director at the time the loans were made. Satterlee in fact swears that these loans prior to October would have been provided for by the Sheldon syndicate agreement, which will. — 296 — be hereafter referred to, if it were not for the known responsibility of the makers of the notes. The fact that these notes were not provided for by the Sheldon syndicate is full coirobo- - ration of Sheldon’s attitude that he supposed the makers were .individually liable thereupon. The trial court has found that these makers were negligently released. If so, the release was by directors subsequent to the resignation of both Gould and Satterlee, and the negligence was not their negligence. But' without further evidence as to the ground of the release or the foundation therefor, it cannot be held that the release was itself a negligent act. '' Wetmore swears that the trust company thought it impolitic to have a suit with such a determined man as Bruckman was known to be. There might have been many reasons from a policy standpoint why the trust company did -not wish to have litigation at that time in respect of those - underwriting agreements. ■ But assume for the - argument that the trial judge was right , in finding that the contention of the makers of these notes was that they were misled by statements in this prospectus. There is no proof in the case that there was any misstatement .of fact in that prospectus, or- anything upon which .'a claim pf fraudulent representation could be made. The trial judge has not found that there was any fraudulent or "false statement therein. Tt was not claimed upon the trial by the plaintiff’s attorney; for when' the question arose the court stated upon the trial: “ There is no claim of fraud here in the prospectus; no recovery asked because of fraud in the prospectus.” This statement was unchallenged by the plaintiff’s counsel.- But the trial court has held these defendants liable- upon áll the White and Bruckman notes, not because of any fraud in the prospectus, but on the ground that the act of publishing the prospectus was an act ultra vires, which gave an opportunity for the makers of the notes to- claim fraud and thereby cause this loss. It is not entirely clear how the conclusion follows the premises in' this syllogism. But* it is immaterial, because in my judgment the premises are inaccurate. Section 156 of the Banking Law' (Gen.-Laws, chap.'31 [Laws of 1892, chap. 689], as amd. by several statutes) purports to define the powers of this company. In the first' subdivision — 297 — of the section (as amd. by Laws of 1893, chap. 696) it is given power “to act as the fiscal or transfer agent of any State, municipality, body politic or corporation; and in such capacity to receive and disburse money, and transfer, register and countersign certificates of stock, bonds or other evidences of indebtedness.” By subdivision 9 (as amd. by Laws of 1893, chap. 696) it is given power “to purchase, invest in, and sell stocks, bills of exchange, bonds and mortgages and other securities.” (See, also, Id. § 156, subds. 1, 9, as amd. by Laws of 1901, chap. 192; Laws of 1906, chap. , 601, and Laws of 1908, chap. 191; now Banking Law [Consol. Laws, chap. 2; Laws of 1909, chap. 10], § 186, subds. 1, 9.) The power thus given would seem to be comprehensive enough to authorize this trust company as the fiscal agent of the shipbuilding company to sell its bonds, and with the authority to sell the bonds there must follow as a corollary, thereto the right to advertise the bonds for sale. If so) the ground upon which the trial judge has based the defendants’ liability for the first three notes, at least, cannot sustain the conclusion which he has reached. As to the loans that were made upon these notes after the twelfth of August, another and a different ground of liability is also asserted. Early after the organization of this corporation the officers of the, corporation were in the habit of buying and selling in the name of the corporation its own stock. At one time $160,000 was invested by the trust company in its own stock. That did not appear upon the books of the company or any of the reports to the executive committee except as so much, charged to “ advances.” With the duty, however, of the executive committee to supervise the detail of the corporation, such a large charge toan indefinite account called “advances” would in my judgment put them upon inquiry, so that they were deemed to have known of this transaction. It is not claimed that anything was lost by this speculation. In fact it resulted in a profit of upwards of $2,000 to the company.- But it is claimed that there was such irregularity as 'should put the directors upon their guard as to possible future irregularity of the officers of the company. There was a further loan appearing upon the books in June of $800,000 to one firm, which was in excess of the amount that might lawfully be loaned to that298 firm. Further, there were loans made to one John W. Young, which, were perhaps inadequately secured by collateral. But the main irregularity" which has been held to charge all of these directors with a specific duty occurred upon the eleventh and twelfth of August, or thereabouts. At that time the options given to the shipbuilding company upon these various properties were about to. expire. Of the $9,000,000 of bonds which were to be sold it was understood that $3,000,000 were to be underwritten in London, $3,000,000 in Paris ' and $3,000,000 in New York. The London and the Paris under-writings fell through, So that when it came to the eleventh • and twelfth of August the shipbuilding company did not have the money with which to complete options which it held. Thereupon the Republic Trust Company loaned to Lewis Nixon and Dresser the sum of $2,600-,000. upon their notes, secured by shipbuilding bonds. It also procured other banks to loan to these same parties further sums, so that' within a short time the Republic Trust Company had either loaned or obligated itself to the amount of about $4,100,000, substantially upon the security of these shipbuilding bonds alone. This was'held by the trial judge to be such an improvident, reckless act of the president of the trust company as to give notice to all of the directors of his improper conduct of .the bank, and further to give notice to them to provide that no further loans should be made upon the security of shipbuilding bonds. /-It cannot be questioned that the act of Dresser in loan-ing thi'SJ-arge sum'to himself and Nixon, and in obligating the trust company for a .-further ' sum, was wholly unauthorized and improvident. I will agree for the argument that this act of - Dresser gave warning to all of the directors not only that steps must be taken to repair the injury done to the bank, but also that steps must be taken to provide against any further such unauthorized acts by: the officers. . The board of directors, however, under Satterlee’s leadership, procured a syndicate, called the Sheldon syndicate, to take these bonds from the company and pay the notes of Nixon and Dresser, and pay the guarantee made by the trust company. So that confessedly no loss came to the trust company by reason of these unauthorized and improvident acts- upon the eleventh and twelfth of August. I — 299 — am not prepared, however, to assent to the proposition that the directors were thus warned that they must loan no more funds upon the security of these bonds. They at that time had loans secured by upwards of $5,000,000, at the par value of these bonds. They could not afford to refuse to take these bonds as collateral for money loaned on these very, underwriting agreements and thus discredit those bonds. If they had done so at that time it would have been impossible to have formed this syndicate for the payment of this $4,100,000, in which amount Dresser had unlawfully involved the trust company. So that the loans of August twenty-ninth to White & Co. of $28,500, of October second to Wheeler & Jones of $12,000, and of October fourth to W. A. Bailey of $12,000, all upon the security of these shipbuilding bonds, cannot be said to have been negligently authorized by the board of directors, if in law they had been, under the peculiar circumstances in which they were placed. It must be borne in mind further that these bonds had not at that time been discredited in the financial market, and that the makers of these notes were all of them' of known financial responsibility. This Sheldon syndicate agreement, which provided for the payment of the unauthorized liability assumed by Dresser upon August eleventh and twelfth, was perfected upon October twenty-ninth.- George B. Sheldon, the head of that syndicate, was one of the leading financiers in New York city. Other members of the syndicate were representative bankers and business men in New York city. They took these bonds at a valuation of seventy-five per cent, with the agreement that they would divide with the trust company whatever profits were made thereupon. They then went into the market and sold these bonds, so that a profit of over $160,000 was made thereupon, of which the trust company,..had its half. Instead of discrediting these bonds, therefore, upon the market, the stability .of their values had been practically for the time demonstrated by these very sales, and after that time the loans made to White, Bailey and Wheeler & Jones in December, 1902, and January, 1903, were made both upon acknowledged financial responsibility of the makers and upon the established market value of these bonds. We may assent to the proposition that these irregularities on the part of — 300 — Dresser were sufficient to put these directors on guard against further irregularities upon his part, and that for losses which thereafter occurred, if they arose from similar irregularities, they would clearly be liable.The difficulty with plaintiff’s proposition is that the losses which did thereafter occur arose from no irregularities on the part of the officers of the company whatever. From, this statement must be excepted an item of $35,000, which will be discussed hereafter. The promise of personal immunity, if given by Dresser, occurred at the inception of these underwriting agreements, before the directors were put upon their guard, and none of the directors had an intimation thereof until 1903, when it was asserted as a defense to those notes. Upon the. making of this Sheldon syndicate agreement upon the 29th day of - October, 1902, the defendant Gould resigned as director. The defendant Satterlee urged Dresser to resign as president, but Dresser was upheld by the defendant Boldt and other defendants, so that he did not resign, and was re-elected in January for another term. Upon his re-election the defendant Satterlee resigned from the board, having resigned from the executive committee upon December twenty-third previous. As to defendant Gould, then, he consented to go upon the board upon an understanding with Dresser that he -should not be called upon to attend any of the .meetings... of__the board, but would simply allow the use of his name in_the directorate. This agreement was clearly beyond -the .authority of Dresser to make. The stockholders had a right to assume that as director he would comply with the obligations of his oath and accept and discharge the responsibilities of the position. . Such_an agreement, could only he made with the stockholders, themselves, and even then it is not certain that such an agreement would be effective.,as^agiin&t_aJiability claimed in- behalf of creditors. In the case aj. bar..-it-does-Jiot appear that there are any creditors whose righ-ts are ■involved.. Gould’s liability, therefore, must be determined as if_no-such agreement had been made, and he is clearlyjiable provided that the dosses with which he has been charged are attributable to his failure to perform the duties which the law imposes upon a director not a member of the executive committee. The con — 301 — tention that because he has wholly. neglected his duties as director he has made the executive officers of the bank his representatives and is responsible for all of their acts, ignores the well-settled rule of law that a negligent director is liable only for the losses attributable to his negligence. If I am right in the conclusions which I have heretofore reached, as_a director generally he was charged neither actually nor constructively with the knowledge of the making of any of these loans or of the collateral upon which they were made. But further than that, if he had been attentive as a director, attending every meeting of the board of directors and had specifically authorized these very loans upon these securities, such acts under the circumstances would not have been negligent acts which would make him responsible for the losses arising therefrom. Neither actually nor constructively did he have notice of any secret agreement for personal immunity made between the makers of the notes and Dresser. So that he might rely upon the acknowledged financial standing of the makers of these notes. And as has been before indicated these bonds had a stable and substantial value in the New Torle market. Looking backward with the knowledge of subsequent events, we might say that such investments were unwise.. In view of the situation as it then existed, at the most it can only be said that there was an error of judgment and to hold directors liable for losses under such circumstances would make them insurers of the acts of the executive officers of the bank. Liability to this extent is nowhere claimed even by the plaintiff. As to the defendant’s after lee still other questions, arise. He was a member of the executive committee, and waft one of the firm of Ward, Hayden & Satterlee, who were the attorneys for the trust company. Upon July sixteenth he went to Europe upon his vacation and did not return until the twenty-ninth day of September. I have heretofore considered his liability as though he had been present at all these times and had- full knowledge of all the acts of Dresser and the Republic Trust Company. Trial court has found that he had no right to take this vacation except with the permission the board of directors and with a provision for, some one’s taking his place. The by-laws provided that with the, president two members of the — 302 — executive committee should^constitute a quorum. Greig was a director upon the executive committee and was one of the officers of the company- and at all times accessible. Prior to leaving Satterlee suggested that one Wetmore, a neighbor of Dresser’s at Oyster Bay, should be asked to fill a vacancy that existed upon that committee, apparently that he might be there during his absence. Either Wetmore or Marvin were at all times present in or near the city of New York and at all times subject to call in case Dresser wanted a meeting of the executive committee. Whether or not they were negligent in not going to the trust company’s building and insisting upon a meeting of that executive committee is not a matter of concern here. Satterlee was not negligent in taking a vacation while there were members of the executive committee sufficient to constitute a quorum at all times during the summer within reach. One of the members of his firm was at all-times in the city during his absence. Of course Satterlee occupied an ' unusual position with this corporation. He was one of the organizers of the company. He was not only a member of . the executive committee, but he was one of the attorneys for. the company, and probably was the mainstay of its president while he was in the city. The executive committee meeting usually consisted of Satterlee, Greig and Dresser. But even so, he had the right to assume that sufficient of the executive committee remaining in the city would attend to make up the quorum, and that the president would see to it that such committee meetings were held. At that time he could not be charged with notice of any such emergency as afterwards arose in respect to the underwriting of the shipbuilding bonds. When he left it was supposed that at least the French underwriting could be relied upon. Positive assurances were given thereof up to within two or three days of the time that the options had to be completed. The company had refused to underwrite any of these bonds. No loans had been made upon their security, which were in any way indiscreet or hazardous as far as he could know. He returned from Europe upon the twenty-ninth of September. Early in October he found out what had transpired in his absence. He thereupon went actively to work to form a syndicate which would — 303 — relieve the trust company of the embarrassment in which it had been put by Dresser’s improvident acts. The formation of this syndicate has been approved by the trial court, and the plaintiff’s counsel in his brief finds no fault with the actions of Satterlee after he returned from his vacation. After the redemption of these bonds and the canceling of these liabilities by the Sheldon syndicate, the bank examiner reported to the State Banking Department that the capital and surplus of the institution were left intact and a small profit shown in addition. It would seem, therefore, that' he had been thoroughly diligent, both before his vacation and after his return therefrom, and without fault in taking that vacation he cannot be held to have been guilty of any negligence jffiich could have caused this loss to the company. There is one other item of liability found as against both of these defendants which is not included in these notes. Shortly after the twenty-fifth day of September Dresser went to Europe and did not return -until sometime in November. Upon the twenty-fifth day of September he withdrew from the trust company the sum of §35,000. This was taken without security. It is spoken of as a loan to Dresser by the trial judge, but if it was a loan to Dresser it was a loan by Dresser to himself. It was not submitted to the executive committee and no knowledge thereof was given to any member either of the executive committee or of the board of directors. In Scott v. De Peyster (1 Edw. Ch. 541) the court in discussing an act of embezzlement of the secretary and treasurer of the company and the liability of the directors therefor, used the following language: " If this be so, then no blame can attach to the president or any of the directors in respect to the mere act of embezzlement or the commission of forgery in altering checks. The funds were not needlessly or improperly exposed by them to the temptation of such crimes. They had a right to repose some confidence in the secretary of the company. His station required it of them; at least, so far as to allow him to receive-whatever money was paid at their office in the course of business and have charge of such money for the purpose of depositing it in bank, and also to the extent of filling up checks to be signed by the president and himself and to be used and — 304 — applied to the purposes for which the same were intended. All these were matters within the scope of' the secretary’s duties, and which, according to established usage, belonged' to him to perform. He was, therefore, entrusted with them, and it was in these alone he betrayed his trust. How then can the president and directors be liable for the act of embezzlement or forgery merely? There was no collusion, and thus far, no want’ • of care or prudence on their part. I know of no law which requires the president or directors of any monied institution to adopt a system of espionage in relation to their secretary or cashier or any subordinate agent or to set a watch upon all their actions. • While engaged in the performance of the general duties of their station they must be supposed to act honestly until the contrary appears; and the law does not require their employers to entertain jealousies "and suspicions without some apparent reason. Should any circumstance transpire to awaken a just suspicion of their want of integrity and it be suffered to pass unheeded, a different rule would prevail if a loss ensued. But, without some fault on the part of the directors, amounting either to negligence or fraud, they cannot be liable. ” Whatever irregularities Dresser had been guilty of prior to this time none of them involved any personal dishonesty. Wherein he had acted contrary to law or prudence was for the supposed benefit of the trust company of which he was president. None of his acts had given cause to any of the directors" to suspect that he would purposely appropriate to himself any sum whatever. It was discovered sometime in October, while Dresser was in Europe. It does not appear what this was taken for. It must be' deemed in the nature of a misappropriation by Dresser, although there must’have been some purpose which caused its taking to be, condoned by the stockholders of the' company, who re-elected him thereafter with full knowledge of his act. The only course which the directors could take would be to sue Dresser therefor." But before he returned and could be sued Gould had resigned as director,, and after he returned Satterlee both advised its suit and sought to compel his resignation, in both of which he was overruled by the directors. There certainly can be no negligence in permitting the misappropriation, which was. done Without their — 305 — knowledge or consent. There can be no negligence In Gould, because of his resignation before the return of Dresser, when suit could have been brought. The diligence of. Satterlee was attested by his effort to have the liability sued upon, and by his effort to have Dresser ousted from the presidency. So for that loss I do not_fincLany ground for liability oLeithenof these defendants- These views lead to a reversaLof this judgment as to defendants appellant upon law and fact and the granting of a new trial, with costs to each appellant to abide the event of the action, which judgment I recommend. All concurred, Betts, J., in the result, except Kellogg, J., who wrote for modification and affirmance.