State Bank of Pike v. Brown

• Decision Date: 08 January 1901
• Citation: 59 N.E. 1,165 N.Y. 216
• Parties: STATE BANK OF PIKE v. BROWN et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 216

59 N.E. 1

STATE BANK OF PIKE

v.BROWN et al.

Court of Appeals of New York.

Jan. 8, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by the State Bank of Pike against George M. Brown and others. From a judgment of the appellate division (52 N. Y. Supp. 1150) affirming judgment in favor of plaintiff, defendants appeal. Reversed.

Appeal from a judgment of the appellate division of the supreme court in the fourth judicial department, unanimously affirming a judgment entered upon the report of a referee. This action was brought upon a bond dated January 2, 1893, signed by Earle S. White as principal, and by the defendants and others as sureties, to recover the sum of $2,467.36 alleged to be due the plaintiff thereon by reason of a breach of the condition thereof. The bond was in the penal sum of $20,000, with the obligatory part in the usual form, and the following recital and condition underwritten: ‘Whereas, the above-bounden Earle S. White has been elected cashier of the State Bank of Pike, located and doing business in the village of Pike, N. Y., by reason whereof divers sums of money, goods, and chattels, the property of said bank, will come into his hands: Now, therefore, the condition of the above obligation is such that if the said Earle S. White, his executors or administrators or assigns, at the expiration of his term of office, upon request to him or them made, shall make or give unto the said State Bank of Pike, or its agent or attorney, a just and true account of all such sums of money, goods, or chattels, and other valuable things, as have come into his hands, charge, or possession, as cashier of the said bank, and shall pay over and deliver to his successor in office, or such other person as may be duly authorized to receive the same, all such sums of money, goods, and chattels and other valuable things as shall appear to be in his hands and due by him to the said bank, then the above obligation to be void; else to remain in full force and virtue.’ White was not a party to the action, but the answer of his sureties, among other defenses, set forth, in substance, a general denial. The referee found that on the 12th of April, 1892, the plaintiff, a banking association incorporated under the laws of this state, employed White as its cashier; that on the 2d of January, 1893, the bond in question was given; that White ceased to be cashier on the 15th of August, 1895; and that he had failed to pay over and deliver the following sums, which came into his possession as cashier: $223.04 of bills and notes discounted, $361.08 of moneys deposited in the bank by persons not doing an active business, and $1,283 of moneys deposited for which certificates of deposit were issued. Judgment was directed and entered for the sum of $1,867.12, and, after affirmance by the appellate division, the defendants appealed to this court.

C. S. Cary, for appellants.

G. S. Van Gorder, for respondent.

VANN, J. (after stating the facts).

The burden of proof was upon the plaintiff to show that the condition of the bond was broken by the failure of White, ‘at the expiration of his term of office,’ and ‘upon request to him’ made, either to render the just and true account required, or to pay over and deliver the moneys and other valuable things which had come into his possession as cashier. In order to meet the burden of proof, the plaintiff read in evidence, under objection and exception, its by-laws, which, in specifying the duties of the cashier, among other things provided that he should ‘keep a full and complete set of books of the association, showing a systematic and accurate exhibit of the affairs of the association, such as are usually kept in well-conducted banking institutions.’ They also provided that he should have ‘personal supervision * * * of the taking and discounting of commercial paper.’ Next, without any preliminary proof, it offered in evidence the books of the bank, or such parts thereof as were applicable. The books were separately received, subject to the objection that each was immaterial and incompetent as against the defendants, who duly excepted to the various rulings admitting them. Under exceptions founded on similar objections, certain computations, made by a witness from these books, were received, which tended to show the different items of shortage precisely as found by the referee. The following questions, rulings, and answers illustrate the nature of this evidence and the method of introducing it: ‘Q. State what you have done with reference to the items, bills discounted, in the same manner. State the computation you have made, and the statement as contained of that item of bills discounted, and the result of your computation.’ This was objected to by the defendants ‘as immaterial and incompetent; that the entries upon the books from which the computation is made are not evidence as against the defendants'; and ‘that it does not appear that the defendants' principal made those entries or was in any way responsible for them.’ The objection was overruled, the defendants excepted, and the witness answered: ‘I took the accounts themselves representing notes and bills discounted, listed them, and footed them. I found there was $90,813.33. The daily statement register shows $91,036.37, a difference of...