Case v. First Natl. Bank of City of Brooklyn

| N.Y. Sup. Ct. | May 15, 1908

Stapleton, J.

Plaintiff sues defendant to recover damages for breach of contract entered into between them whereby the defendant agreed to employ plaintiff as a solicitor of business for one year at an annual salary of $1,50-0. Defendant- demurs to the complaint on the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action.

The specific assignment on the argument and in the brief was that the contract set forth in the complaint was beyond the power of the defendant, in that it was violative of the provisions of the act of Congress, June 20-, 1874, the National Bank Act, section 5136, United States Compiled Statutes. The particular provision invoked is: A national bank shall have power inter alia “ Fifth. To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.”

In the third subdivision of the same section, a national bank is explicitly empowered “ To malee contractsand, in the seventh, “ To exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking,” etc.

As general laws constitutionally enacted by Congress are the supreme law of the land, the courts are bound to take notice of them without allegations of their provisions or proof of their enactment; the claim of the defendant is properly raised by demurrer. Platt v. Crawford, 8 Abb. Pr. (N. S.) 297; Milliken v. Dotson, 117 A.D. 5" court="N.Y. App. Div." date_filed="1907-01-11" href="https://app.midpage.ai/document/in-re-the-petition-of-clement-5201609?utm_source=webapp" opinion_id="5201609">117 App. Div. 5'27—529.

I cannot hold that a “ solicitor of business ” is comprehended within the class “ and other officers ” referred to in the statute hereinbefore quoted. The distinction in practical affairs is easily discernible, and should not disappear in reading a statute. The word “ officer ” excludes the ordinary employee; it has a defined meaning in the law; and in construing this statute a rule of construction requires that the words “ and other officers ” must be treated as referring to positions ejusdem generis- with those specifically designated. Bristol- v. Smith, 158 N.Y. 157" court="NY" date_filed="1899-02-28" href="https://app.midpage.ai/document/bristor-v--smith-3599788?utm_source=webapp" opinion_id="3599788">158 N. Y. 157; Wakefield v. Fargo, 90 id. 213.

The learned counsel for the defendant cites as an authority for Ms contention Harrington v. First ¡National Bank of CMttenango, 1 T. & C. 361. The concurrence in that case was in the result, the discussion of the National Bank Act was unnecessary to the decision, and the observations of the writer were made upon an express misquotation of the statute in which, after the word “ officers,” the phrase “ and agents ” was erroneously interpolated. If the statute read as the learned justice stated in that case, I would reach the same result. It is not in my judgment an authority for the proposition advanced here.

My conclusions are that the defendant had the power to make the contract, breach of which is alleged; that the complaint states a cause of action, and there should be judgment for plaintiff overruling the demurrer, with leave to defendant to answer.

Judgment for plaintiff.