201 F. 86 | 2d Cir. | 1912
Judge (after stating the facts as above).
Petitioner undertook to supplement this by showing other circumstances. The firm’s balance with the bank at the opening of business was $2,142.37. The only deposit made that day was $10,000, cash received from the various branch stores of the firm, being returns from their sales of the day before. It was usual to deposit such receipts from the branch stores in the morning, but on this day the deposit was held back till after the interview with the bank had taken place, and the firm understood they were to get some extension for payment of a note, due that day, which the bank held. The teller testified that he never overcertified, and that with only $2,142 to the credit of the firm he would not. have certified their check or note for $5,075. It is contended that this shows that the certification must have been made after the deposit; that is, after the interviews.
We do not find the testimony persuasive to that conclusion for these reasons. When Weichert was first informed by Frazin as to the situation, he telephoned to his own office to know the condition of the firm’s account with the corporation. Learning of the $5,075 note, he .gave instructions to have a check of the corporation for that amount drawn and sent to the Nassau Trust Company with which the note had been discounted, so that, if payment of the note were- refused at the Second National, the indorser’s check would be with the Trust Company to take it up. When Weichert went to the interview with Simonson at the latter’s downtown office he told him of this note, and asked if it had been paid. Thereupon Simonson stepped to the telephone, and, when he returned, he said, “Your note was paid.” This was between 1 and 2 p. m. The cashier of the corporation, Ralston, testified that he took its check to the Nassau Trust Company about 10 minutes to 3, in order to take up the note, but upon inquiry there he was informed that the note had been paid, whereupon he took the check back with him and canceled it. These witnesses evidently used the word “paid” as the equivalent of “certified.” Finally the man who actually-made the $10,000 deposit with the Second National Bank testified positively that he did not deposit it until about 4 p. m. If this testimony be credible, and we see no reason to doubt it, the certification was made irrespective of the deposit, and there is nothing to show that it was made after 12 o’clock.
Petitioner contends that this testimony should be outweighed- by the presumption that the certifying officers of national banks always perform their duty. We attach no weight to the suggestion that, to affirm, we must hold the teller who certified to be a “criminal.” Whether overcertification be a criminal act, a proposition which we are not to be understood as assenting to, certainly such affirmance is consonant with an entire absence of criminal intent on the part of the teller who certified. He depends and necessarily must depend on the reports of others. His assistant goes to the bookkeeper and asks him the amount of the customer’s balance, and accepts his statement of such balance. It is quite conceivable that, like all other human machines, even a bank bookkeeper may make a mistake, may look at
The order is affirmed.