72 N.Y.S. 965 | N.Y. App. Div. | 1901
' There is no evidence in the record sufficient to uphold a finding that the alleged libelous matter was read in the presence of the' defendants before the creditors’ committee, or that the defendants or either of them, other than the defendant Baker, ever authorized or directed the publication of such alleged libelous matter. It was solely the. act of Baker. Baker was not the attorney of the committee for the purpose of publishing libelous matter, nor for the purpose of preparing for publication any matter whatever. The preparation and publication of the alleged libelous matter was not in the line of his employment. Had Baker been directed to prepare an article for publication, and in doing so had exceeded his authority as to the matter to be included in the article, some of the authorities cited by the appellant would be applicable. The testimony in regard to Finch arranging with the proprietor of the paper for the publication of the report referred to the report only, and not to the additional matters published; nor is the evidence by which it is claimed by the appellant that the defendants, other than the defendant Baker, ratified and approved the article as published sufficient to justify such conclusion. It is not shown that the defendants Finch, Vaughn or Clements ever circulated the paper in which the publication was made, or assented to the matter in any manner whatsoever. What they did related wholly to indemnifying the publisher of the Fort Ann Republic and was not an approval of the words' published. The dismissal of the complaint as against the defendants other than the defendant Baker was right. The trial Court submitted to the jury the case as against the defendant Baker, and in doing so expressly stated that the particular crime which it was alleged was committed by the plaintiff, and which the article charged was committed, is defined by section 601 of the Penal Code, and then read the same to the jury. He further said to them, in substance, that if they found that the plaintiff continued to be a member of the firm down to the time of the failure, that they must find that' he knew that the bank was insolvent when . the deposits were received on the day of failure, and that he violated section 601 of the Penal Code. He further charged the jury in substance that if lie was not a member of the firm, but that if Adams placed Hall in control of the bank, and Hall assumed direction of the bank as agent
The exceptions taken to the charge, together with the statement made by the appellant when testimony was offered in regard to the receipt of deposits on the day of the assignment, are sufficient to raise the question before this court as to whether John Hall & Co. were included within the provisions of section 601 of the-Penal Code.
Section 601 of the Penal Code is as follows: “ An officer, agent, teller or clerk of any bank, banking association or savings bank, and every individual banker or agent, and any teller or clerk of an individual banker, who receives any deposits knowing that such bank, or association, or banker is insolvent, is guilty of a misdemeanor.”
Section 609 of the Penal Code is as follows:
“ § 609. Private banker using sign.— Any person engaged in ¡banking in this state, not subject to the supervision of the superintendent of banks, and not required by law to report to such superintendent who was not engaged in such banking before Hay 23, 1885, who
“ 1. Uses an office sign at the place where such business is transacted, having thereon any artificial or corporate name, or other words indicating that such place or office is the place or office of a bank; or,
“ 2. Uses or circulates any letterheads, bill-heads, blank notes, blank receipts, certificates, circulars or any written or printed paper whatever, having thereon any artificial or corporate name,' or other word or words indicating that such business is the business of a bank;
“ Is guilty 'of a misdemeanor.”
It is plain from a reading of these sections of the Penal Code that section 601 relates only to a bank, banking institution or individual banker subject to the supervision of the Superintendent of Banks .and required by law to report to such superintendent, and does not in any way refer to a private banker. The distinction between an individual banker and private banker is well known and recognized in all our statutes and by the decisions of the court. In Perkins v. Smdth (116 N. Y. 441) the court say: “ Since- the passage of chapter 363, Laws of 1840, the term : individual banker ’ has been
This case was presented to the jury and decided by them upon an erroneous theory, and the judgment as against the defendant Frederick I. Baker must be reversed and a new trial granted herein as against him. The judgment herein as against the defendants Finch, Vaughn and Clements affirmed, and as against the defendant Baker-reversed, and a new trial ordered as against him, without costs to-either party in this court.
All concurred, except Smith, J., not voting.
Judgment and order as against the defendants Finch, Vaughn and Clements affirmed, and as against the defendant Baker reversed,, and a new trial granted as against him, without costs to either party in this court.
