
    Harold Nathan, as Administrator, etc., of Martin Cassidy, Deceased, Appellant, v. Frederick Uhlmann, Respondent, Impleaded with Others, Defendants.
    
      Bank officers — liability of, where deposits are taken by them with knowledge that the ■bank is insolvent —a judgment in favor of some depositors is not admissible in a suit by others—it is not necessary to prove intentional and deliberate bad faith on their part—proof that the deficiency in the bank proved to be larger than, prior to the appointment of receivers, it was stated to be by the bank examiner to its officers — as affecting the credibility of the examiner its admission was discretionary.
    
    A judgment recovered in an action brought by the plaintiff as assignee of .a number of depositors in an insolvent bank, against the officers and directors of such bank, to recover the losses sustained by such depositors in consequence of the •act of the defendants in permitting the bank to receive moneys on deposit when they knew it to be insolvent, is' not admissible in evidence "in a similar action subsequently brought by the same plaintiff as assignee of other" and different depositors.
    Upon the trial of such an-action it is improper for the court to instruct the jury that they must find actual, intentional and deliberate bad faith on the part of the defendant in- order to entitle the plaintiff to a verdict.
    The rule applicable to such an action is as follows: The relation of a director of ‘ a bank to its depositors is a confidential and fiduciary one; and a director who, having ascertained by personal investigation that his bank is hopelessly insolvent, participates' in keeping, the bank open for the receipt of deposits, in effect represents to the public during that period that it is solvent, commits a breach of his legal duty and becomes personally liable to one who during such time makes deposits therein.
    Upon the trial :of such an action it appeared that, a few days before the bank closed its doors, a bank examiner informed' one of the defendants that the capital of the hank was impaired to the extent of §70,000 or §80,000, which would have left sufficient assets to cover the bank's liabilities. It further appeared ■ that after the bank had passed into the hands of receivers the same bank examiner, upon a more thorough examination of the affairs of the bank, found the impairment of capital to amount to $871,000. On the cross-examination of the bank examiner the plaintiff asked him to explain the discrepancy between the two statements which he had made in regard to the condition of the affairs of the bank, but the court, over the plaintiff’s exception, excluded the question.
    
      Held, that the condition of the bank, after it closed its doors, was .not material or relevant upon the question of the defendant’s liability, and that the evidence which the plaintiff sought to elicit was only competent, if at all, for the purpose of affecting the credibility of the bank examiner as a witness;
    That, in view of the fact that the evidence sought to be elicited by the plaintiff had a tendency to mislead the jury, and of the rule that the scope of a cross-examination as to collateral matter for the purpose of affecting the credibility of a witness is within the control of the trial judge, the exclusion of the question propounded by the plaintiff to the bank examiner did not constitute an error which would justify the reversal of a judgment entered upon a verdict in favor of the defendant.
    Appeal by the plaintiff, Harold Nathan, as administrator, etc., of Martin Cassidy, deceased, from a judgment of the Supreme Court in favor of the defendant Frederick Uhlmann, entered in the office of the clerk of the county of New York on the 16th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Harold Nathan, for the appellant.
    
      William A. Jenner, for the respondent.
   O’Brien, J.:

This action was brought by the plaintiff’s intestate, as assignee of five depositors in the Madison Square Bank, to recover for losses sustained by such depositors in consequence of the defendants, who were officers and directors of the bank, receiving money on deposit at a time when such defendants knew the bank to be insolvent.

The material facts appearing in the record were before this court upon a former appeal from a judgment against the defendants, entered upon,a verdict of a jury. (Cassidy v. Uhlmann,, 27 App. Div. 80.) We affirmed the judgment, but the Court of Appeals ordered a reversal (Cassidy v. Uhlmann, 163 N. Y. 380) upon the ground that there was error in excluding the testimony of the defendant Uhlmann as to his belief in the solvency of the bank. That was the only' ground of the reversal. It is not; necessary* • therefore, to discuss anything on this appeal except some special features of the case as now presented.

In addition to the case cited we have a kindred one in Cassidy v. Uhlmann (54 App. Div. 205; affd., 170 N. Y. ,505), instructive on the general question of liability of defendants in actions of .this character. The last trial resulted in a verdict in favor of the; defendant Uhlmann, and from the judgment so entered the plaintiff appeals. He contends, among other things, that the court erred in excluding as evidence the judgment in Cassidy v. Uhlmann(54 App. Div. 205), it being insisted by him that it was admissible, at least as" proof of the fact that the defendants knew of the insolvency . of the bank when the deposits, were received.

' We do not think that this contention can be upheld, for the parties are not the same. They are actually different and the judgment sought to be introduced is res inter alios acta. Here Cassidy (and now his administrator) is endeavoring to enforce the claims of depositors, but they are" other and different depositors from those whose rights' Gassidy sought to enforce in the other action. Each is an independent party with an independent claim. As assignee Cassidy had no other or different right than his individual assignors . could enforce had they personally brought the action ; and if we escape the confusion arising from the fact that, in both actions, the assignee of separate , and distinct depositors is the same person, namely, Martin Cassidy, it will atronco be apparent that the ruling of the trial judge was right. We are not referred to any authority which holds in substance ór in principié or from which it can be .deduced that a judgment obtained by a depositor in'one action is competent evidence against the same defendant in another action brought by another and different depositor. The exclusion, thereiore, of the judgment does not constitute ground for reversal.

The second error assigned by the appellant is the exclusion of evidence sought to be elicited by a question put by the plaintiff ón cross-examination of the bank examiner, Judson. It was shown that on one of the days when the defendant Uhlmann was at the bank arid its then condition was under consideration, he had a conversation with Judson, in which the latter stated that the impairment of the capital of the bank, was to the extent of $70,000' or $80,000, which would have left after payment of debts an amount for distribution among stockholders. It appeared, however, that subsequent to the appointment of receivers, this same bank examiner, upon a more thorough examination, .found the deficiency to be over $371,000. The. details of such examination and a copy of the statement of the assets and liabilities of the bank as then found by him were'introduced in evidence. ' The question was asked of Judson how he could explain the discrepancy between the statement which he had made to defendant Uhlmann á .few days before the bank closed its doors and his statement of its condition, upon subsequent examination. To the exclusion of the question the plaintiff excepted.

There would be force in the suggestion that this evidence was e impotent as bearing at least upon the credibility of the witness, but we assume the rule is settled that to some extent the scope permissible on cross-examination upon collateral matter for the purpose of affecting the credibility of a witness is within the .control of the trial judge. The question presented upon the trial was the condition of the bank and the knowledge which the defendant Uhlmann had thereof up to the time it closed its doors, and all that appeared thereafter, because not affecting his liability, was immaterial and irrelevant except as suggested. Thus the condition of the bank as subsequently found by Judson would be immaterial, because it could not in any way have any bearing upon the defendants’ liability, and much less could any explanation which Judson might make of the discrepancy in the two statements be regarded as material upon that point. It was dangerous evidence and it might well have tended to confuse the jury by the suggestion that the hopelessly insolvent condition of the bank as found after, had some bearing upon the defendants’ knowledge or belief before it closed its doors. We do not think, in view of the tendency of such evidence to mislead the jury and the discretion which the court could exercise in accepting or rejecting evidence upon credibility., that the ruling excluding the question would justify our reversing the judgment. We think, however, that the- judgment cannot stand because of errors in the charge with respect to certain principles of law -applicable to the case and embraced in 'requests presented by the plaintiff and refused by the court..

The charge as at-first made Was'not, strictly speaking,, erroneous, but it failed clearly and distinctly to. state the propositions of law which plaintiff was entitled to have charged.

In the main charge the court said, among other things: “ This case is founded upon a claim that the defendant acted fraudulently toward the depositors; that is, that he disregarded a duty which lie owed them of using good faith in view of the knowledge which he possessed and of such power as he had in the direction of the bank’s affairs. * * ' * The acceptance of deposits in bad faith toward the depositors by ,an insolvent bank is, in .law, a fraud for which those participating * * * should be held answerable. * * * The plaintiff’s case depends upon your finding' that the defendant had knowledge of the condition of the bank, that he believed the bank to be insolvent and that he either participated in the taking' of deposits with bad faith toward the depositors, or that he failed to take such steps to protect the depositors, as good faith would require. . * The defendant has disclaimed any intention hostile to the interests of the depositors. * "" Whether he Omitted something which he should have done .and whether * * it is justly tó be inferred that - he acted in-bad faith * * * you are to determine. * * * Ton are to endeavor to find what was the motive, the intent)or state of mind of the defendant, with regard to the interests of the depositors. * * * Tour finding of the defendant’s bad faith or dishonest intention in the matter * * * must not be a matter of mere surmise or conjecture. . * * * If you Conclude * * * in favor of the claim that the defendant knew or fully believed the bank to be insolvent and that he personally was chargeable witli bad faith toward the depositors * * * your verdict would be in the plaintiff’s favor.”

The plaintiff requested the court to charge, “ It is a fraud for the officers of a bank to permit a deposit when they know that the bank is insolvent,” which request was refused, the plaintiff excepting. Other requests similar in substance were made and refused, exceptions being taken, and then the- plaintiff made théfollowing request. “ If the Madison Square Bank was insolvent on August 7th and 8th, 1893, and the defendant had knowledge of such insolvency and with such knowledge took part in directing the receipt of deposits by the bank, the plaintiff is entitled to recover.” This also was refused, “ except as charged,” and plaintiff excepted. The jury were thus left to conclude that, whatever the acts of the defendant were, to make him liable they must find that he was animated by bad faith. And in this connection it is significant that the jury first returned a verdict “in favor of the plaintiff for the full amount asked, exonerating the defendant from intention to defraud.” The court refused to accept the verdict and instructed the jury again that they could find for the plaintiff only providing they found “the defendant was guilty of bad faith amounting to framd, * * * because if you exonerate the defendant from bad faith amounting to fraud, then the plaintiff is not entitled to recover.” The plaintiff excepted and requested the charge that “if the defendant prior to the receipt of these deposits knew that the Madison Square Bank was insolvent and with such knowledge took part in keeping the bank open or in directing the receipt of deposits with the intent that deposits should be received, that the plaintiff is entitled to recover.” This also was refused, “ except as already charged,” the plaintiff excepting; and thereafter the jury returned a verdict for the defendant.

Numerous other requests were made and refused, exceptions being taken by the plaintiff, but they present practically the same question as to whether the court erred in instructing the jury that they must find actual intentional and deliberate bad faith in order to entitle plaintiff to a verdict. As said in 14 American and English Encyclopaedia of Law (2d ed. 104): “ To render a false representation fraudulent and the person making the same liable, it is not at all necessary that there shall have been any actual dishonesty of motive or intention. As far as the mental attitude of the party is concerned, all that is necessary is to show that he knew the representation was false or to show facts from which such’knowledge may be implied and that he intended that it should be acted upon by the person injured.” The rule is thus stated in Coleman v. Wolcott (1 Conn. 285): “ When the effect .of an act understandingly done is necessarily injurious to the rights of another, .the quo anima is not a matter of fact; it is settled and becomes an inference of law.” And in this State it was held (head note): “ A banker- who,is, to his own knowledge, hopelessly insolvent cannot honestly continue his business and receive the money of his customers ;■ and, although having; no actual intent to cheat and defraud a particular customer, he will be held to have intended the inevitable consequences of his act.” (Anonymous, 67 N. Y. 598. See, also, Foster v. Charles, 6 Bing. 396.) In Boyd’s Executors v. Browne (6 Penn. St. 310) the court said : “ The motives by which he was actuated do. not enter into the inquiry. If he make representations productive of loss to another, knowing such representations to be false, he is responsible as for a fraudulent deceit.”

The rule thus applicable was stated by this court upon the former appeal in this action (Cassidy v. Uhlmann, 27-App. Div. 80) as follows (head -note): “ The relation of a director of a bank to its depositors is a confidential and fiduciary one ;, and a director who having ascertained * - * * by personal investigation that his bank is hopelessly insolvent, participates-in keeping the bank open for the receipt of deposits * * * in effect represents to the public during that period that it is solvent, commits a breach of his legal duty and becomes personally liable to one who during such time makes deposits therein.” This rule was also referred to in the kindred case of Cassidy v. Uhlmann (54 App: Div. 205), and wás approved upon appeal to the Court of Appeals (170 N. Y. .505).

. Irrespective, therefore, of any intentional wrong or bad faith-the defendant, if the jury found that he had knowledge that • the bank was insolvent and participated thereafter in the receipt of deposits, was, as matter of law, guilty of fraud and liable for the loss sustained thereby. This rule the plaintiff was, entitled to have charged to the jury as requested, and for the error-id refusing'to so charge, we think the judgment must be reversed and a new trial-granted.

' The judgment and order accordingly should be reversed and new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. j., Patterson, Hatch and Laughlin, JJ., concurred.. • . >

Judgment and order reversed, new trial ordered, costs to appellant to- abide ev’ent.  