132 N.Y.S. 747 | N.Y. App. Div. | 1911
Lead Opinion
The defendant was copartner with three other individuals carrying on the business of private banking under the firm name of Knapp Brothers, and was also one of the directors of the Binghamton Trust Company, which at the time of the transactions in question had a capital of $300,000 and a surplus of like amount.
The indictment charges the defendant with having violated section ' 297 of the Penal Law, which prescribes that every director of a moneyed corporation who “wilfully does any act as such director which is expressly forbidden by law, or wilfully omits to perform any duty imposed upon him as such director by law, is guilty of a misdemeanor if no other punishment is prescribed therefor by law. ”
. The indictment contains four counts. The first count charges the defendant with the crime of violating section 297 of the Penal Law by willfully omitting; to diligent]v and honestly
The second count charges the defendant with violating the same section in willfully omitting to perform the duty imposed upon him by law as a director of the trust company by willingly permitting it to violate the provisions of section 27 of. the Banking Law (now Consol. Laws, chap. 2; Laws of 1909, chap. 10), in knowingly permitting the liability of the copartnership of Knapp Brothers to exceed forty per cent of the capital stock and surplus of the Binghamton Trust Company, in that said trust company did lend to said copartnership, on the 3d day of April, 1909, the same $2,500 mentioned in the first count, while such copartnership was already indebted to such trust company for moneys loaned in an amount exceeding $240,000 (forty per cent of capital and surplus), and that he, the “said Charles J. Knapp, then and there being such director, did then and there wilfully, knowingly and unlawfully order, direct, permit, advise, counsel and procure ” the said trust company to make such loan.
The third count charges the defendant with violating the same section in willfully omitting to perform a duty imposed upon him by law in willfully permitting the trust company to violate the provisions of subdivision 11 of section 186 of the Banking Law, by permitting it to make the same loan to defendant as director, by loaning such money to the copartnership of which the defendant was a member, without the consent of a majority of the board of directors of such trust company, all of which was done through the direction, permission, advice and procurement of the defendant.
. The last three counts of the indictment close with the allegation that it was the duty of the defendant as director .of the Binghamton Trust Company not to willingly permit such trust company to violate any of the provisions of law applicable to it, and that the defendant willfully and "knowingly omitted to perform his duty in "that regard, and that such willful omission is one for which no punishment is-prescribed by law other than is prescribed by section 297 of the-Penal Law.
On arraignment the defendant demurred to all the counts of the indictment and to the entire indictment on the ground that the acts constituting the crime were not sufficiently stated, and that none of the counts stated facts constituting a crime, and' that if they did more than one crime was improperly stated therein. The demurrer was sustained, and the People appeal from the judgment entered thereon.
The first count is based upon the theory that it being the duty of the defendant upon assuming the office of director of the "trust company to take an oath to diligently and honestly administer the affairs of such trust company and not to knowingly violate or willfully permit to be violated any of' the provisions of law applicable to such company, a willful omission to honestly and diligently discharge such duties by not" preventing , the loan of the funds of the company without sufficient security, to an insolvent copartnership was a violation of duty imposed by law upon the defendant which made him amenable to the provisions of section 297 of the Penal Law. In other Words, the defendant is charged with the commission of a crime because he willfully omitted to do what he said he would do when he toóle his oath of office as director. This same theory was evidently in the mind of the pleader in the
It was á duty imposed by law upon the defendant to take an oath of office as director in a prescribed form. That duty he performed. While he swore that he would honestly and diligently administer the affairs of the trust company and not knowingly violate or willingly permit to be violated any of the provisions of law applicable to such company, yet in order to charge him with a crime under section 297 of the Penal Law it would be necessary to ascertain, not whether he had violated his oath but whether he had done any act as such director expressly forbidden by law, or willfully omitted to perform any duty imposed upon him by law. The language employed by section 297 manifestly refers to any act forbidden or imposed by statute, and does not include those acts which might impose civil liability upon a director of a moneyed corporation. The expressions “required by law,” “ allowed by law,” “ limited by law ” and the like, employed in a statute, refer to statutory law. (Brinckerhoff v. Bostwick, 99 N. Y. 190.) If the Legislature had intended to make a director criminally liable for violating a common-law duty it could easily have used appropriate and precise language to that effect. In the absence of precise language it must be assumed that violation of statutory law was meant.
We agree with the learned trial court that the indictment cannot be sustained on the theory that violation by the defendant of his oath of office constituted a crime. The demurrer to such first count was properly sustained.
It remains to be considered whether or not a crime was properly charged in any of the other counts of the indictment. All reference to the defendant’s oath of office in such counts and its violation as such may properly be treated as surplusage.
Section 27 of the Banking Law prohibits a trust company located as the Binghamton Trust Company was from loaning more than forty per cent- of its capital stock and surplus to any person, company, corporation or firm. More than fifty per cent of the capital stock and surplus is charged to have been loaned to the copartnership firm of Knapp Brothers. Subdivision 11 of section 186 of the Banking Law prohibits any trust
The defendant urges that the prohibitions of law contained in sections 27 and 186 of the Banking Law are directed against' the trust company itself and not against a director as such, and, hence, there is no prohibition by law which a director by any of his acts could willfully violate, and that no duty is imposed upon him by law which he could willfully omit to do.
We do not think this contention is sound. A trust company can be .managed only by its board of directors, and the law prescribes that it shall have at least .a certain number. A trust company, like all corporations, is a creature of the statute, and the Legislature has the right to prescribe what a corporation shall do and what it shall not do. That limitation is imposed upon the command and understanding that the management shall be in the hands of a board of directors. When the corporation itself is forbidden to do an act the' prohibition extends to the board of directors and to each director. The business hf banking is of the greatest moment to the State at large, and it is of the greatest importance that such business be carefully regulated, by law. This it is attempted to do by the elaborate provisions respecting the carrying on of banking by private individuals, and the formation of banking corporations, trust companies, savings banks and loan associations, and prescribing what they may do, and what they shall ■ not do, as well as what various officers and directors may do and may not do. The Penal Law, in article 26, defines certain acts with respect to banking to be crimes of various degree. Section 667 of the Penal Law provides that a director of a corporation is deemed to have such knowledge of the affairs of the corporation as to enable him to determine whether any act, proceeding or omission of its directors is a violation of article 64 or of article 26, and if present at a meeting, at which any
The loaning of more than forty per cent of the capital and surplus of a trust company to any one firm or individual or corporation is a very grave matter in the conduct of a trust company. It is clearly and distinctly forbidden by law, but the offense of doing it is not specifically mentioned in the various offenses defined in article 26 of the Penal Law. It would be doing violence to legislative wisdom to assume that such an act by the board of directors was not intended to be punished and that the sweeping language of section 297 was not intended to and did not reach a director who willfully voted at a meeting of directors to violate the law, or willfully omitted to perform the duty of voting against a violation of such law. The prohibition against loaning more than forty per cent imposed a duty upon the board of directors not to.loan exceeding that amount.
The doing of an act prohibited by statute or the omission to perform a duty imposed by statute may be made an indictable crime. (Gardner v. People, 62 N. Y. 299; People v. Meakim, 133 id. 214; People v. Brooks, 1 Den. 457; People v. Norton, 7 Barb. 477.)
Nor does the fact that the charter of a trust company may be taken away if it violates a provision of law prevent criminal
Counts 3 and 4 of the indictment do not come under subdivision 7- of section 27 of the Banking Law as suggested by defendant, for that subdivision relates only to banks and not to trust companies, and besides the pleading would be confined in any event to the violation of subdivision 11 of section 186, which is specifically referred to. Subdivision 11 of section 186 prohibits the loaning of an amount exceeding one-tenth of the capital stock of the trust company to any director “directly or indirectly,’’ and in the same sentence a loan in any amount is prohibited “to such director” without the consent of a majority of the directors. The words “directly or indirectly ” refer to both classes of loans. The defendant, as one of the copartners of Knapp Brothers, was directly interested. in obtaining the loan for his copartnership firm and was personally liable for the debt in case the partnership property should be insufficient to repay it.
We are of opinion the statute forbade the loan to nis copartnership firm as well as to the defendant himself directly. The loan was made indirectly to him through his firm. It is true that in section 142 of the Banking Law, relating to savings banks, a trustee or officer is prohibited from directly or indirectly “for himself or as an agent or partner of others ” borrowing any of the funds, and it is urged that the Legislature having been so careful in its language in that section would have employed, the same language in the section under consideration if it had so intended. While such argument is entitled to some weight, we think the plain language and intent of the law is to prohibit the indirect loaning of more than one-tenth of the capital stock of a trust company to a director thereof through a loan to a copartnership firm of which he is a member, and that the same rule applies to such a loan in any amount without the consent of a majority of the board of directors. Such was
Our conclusion is that the director of a trust company is amenable to the provisions of section 297 of the Penal Law if he willfully does any act as such director which the trust company itself is prohibited by statutory law from doing) or if he willfully omits to prevent the doing by its board of directors of
Personally I am of the opinion that the demurrer to these counts was properly sustained upon the ground that the acts which the defendant is alleged to have willfully done are not set forth with sufficient certainty to constitute a proper indictment.
An indictment must not only charge the crime claimed to have been committed but must set forth the act constituting such crime and the omission of the one or the other is fatal to its validity. (People v. Corbalis, 178 N. Y. 516.) All the acts alleged plainly charge the defendant with an omission of duty imposed by law and not the doing of any act expressly forbidden by law. It is alleged that the defendant as a director permitted the prohibited and illegal loans to be made, and omitted to do his duty with respect td them as he was required by law to do. In charging how he did the act complained of. it is alleged in all the counts that the defendant did, “wilfully, knowingly and unlawfully order, direct, permit, advise, counsel and procure” said trust company to make said loans. Each of these words used implies affirmative action on the part of the defendant, except the one word “permit.” If he ordered, directed, advised, counseled and. procured, then he did not omit by inaction to do his duty but he was actively engaged in doing an act expressly forbidden by law and was not willfully omitting to perform his duty. Section 297 clearly specifies two classes of the same crime, one which can be committed by commission and one which can be committed by omission. It seems to me utterly impossible to tell from the. language employed in the indictment which one of these classes of acts the defendant is charged with having committed. The language is more pertinent to that of commission, but upon referring to other portions of the counts it is obvious that the defendant is charged with the class of acts involving omission. In order to apprise the defendant of what he‘is charged with having omitted,' the indictment should have stated in what way he willfully omitted to do the. act with respect to the loans which he was required to do, in that, know
Section 275 of the Code of Criminal Procedure requires that an indictment shall contain “ a plain and concise statement of the act constituting the crime.” This means that it shall state in a plain and concise way the manner in which it is claimed the crime was committed. The purpose of this statutory requirement is not only to protect the defendant from further prosecution for the same offense, but to apprise him of the nature and character of the offense charged and of the facts which may be proved so as to enable him to prepare his defense. (People v. Helmer, 154 N. Y. 596, 600.) An indictment for grand larceny charging the crime to have been committed by stealing, taking and carrying away will not sustain a conviction where the larceny was committed by obtaining possession of the property by false and fraudulent representations notwithstanding the latter be one of the ways by which larceny can be committed. (People v. Dumar, 106 N. Y. 502.) An indictment which charges that one unlawfully did sell or give away liquor on a certain Sunday is insufficient because it
Nor can these counts be said to properly charge acts of commission, in that the defendant actively procured the trust company to make the forbidden loans by ignoring the word “ permit ” and treating’' it as a surplusage, or by assuming that the permission was the result of action on the part of the defendant. In all the counts the charge is that the defendant violated section 291 of the Penal Law by willfully “ omitting ” to perform the duty imposed upon him by law as a director of the trust company, in that he willfully permitted the prohibited acts to be done, and in each count follows the allegation that he ordered, directed and procured the same to be done. To my mind this statement of the act constituting the crime is so uncertain, or so inconsistent with the charge, as to make the indictment bad and the demurrer thereto proper.
My associates, however, do not concur with me in this view, and it follows that the judgment sustaining the demurrer as to counts 2, 3 and 4 must be reversed and -a judgment entered overruling the same and directing the defendant to further plead.
All concurred, except Betts, J., who voted to overrule the demurrer as to all counts, with an opinion, in which Kellogg, J., concurred.
Dissenting Opinion
The defendant was indicted March 8,1911, by the grand jury of Broome county for the crime of violating section 291 of the Penal . Law of the State of New York, in that he willfully omitted as a director of a moneyed corporation - to perform duties imposed upon him by law as such director. The indictment contains four counts.
The opinion by Mr. Justice Houghton very fully sets forth, the indictment and the various counts thereof and the surrounding circumstances existing at the time the commission of crime or crimes is charged.
The defendant demurred to all the counts of the indictment and to the indictment on the ground that the acts constituting the crime were not sufficiently stated, and that none of the
. The appeal brings in question whether, the oath that is required to be taken by' a director of a trust company prescribes the duties of such director.
Article 5 of the Banking Law, being sections 180-198, prescribes the method of incorporation of trust companies in this State, the powers and duties of such trust companies,, and the qualification and liability of directors and other matters connected with the organization and conduct of business of such trust companies. .
Section 195 is entitled “ Directors ” and provides that “ The affairs of every such corporation shall be managed and its corporate powers exercised by a board of directors,” giving the necessary numbers and method of election, provides for filling vacancies and then contains the following: “Each director when appointed or elected shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of such corporation and will not knowingly violate, or willingly permit to be violated, any of the provisions of law applicable to such corporation, and that he is the owner in good faith and in his own right, of the number of shares of stock required by this section, subscribed by him or standing in his name on the books of the corporation, and that the same is not hypothecated or in any way pledged as security for any loan or debt and, in case of re-election or reappointment, that such stock was not hypothecated or in any way pledged as security for any loan or debt during his previous term. Such oath shall be subscribed by the director making it, and certified by the officer before whom it is taken, and shall be immediately transmitted to the superintendent of banks and filed and preserved in his office.”
Section 297 of the Penal Law, so far as material, is as follows: “Misconduct by Directors of Moneyed. Corporations. Every director of" a moneyed corporation who:
“2. Wilfully does any act as such director which is
“Is .guilty of a misdemeanor, if no other punishment is prescribed therefor by law.”
The principal question in count 1 is whether the above section 195 of the Banking Law in prescribing the oath to be taken by each director when appointed or elected thereby prescribes and fixes the duties imposed upon such director.
It is stated that there has been no authoritative decision as to whether such portion of such section does impose a duty upon a director. If there has been no decision there will now be an attempt to make one.
It seems to me too plain to permit of .cavil that the .Legislature prescribed by that section that each director will so far as the duty devolved upon him diligently and honestly administer the affairs of such, corporation and will not knowingly violate or willingly permit to be violated any of the provisions of law applicable to such corporation This is a prescribed qualification by the statute of a director in a trust company. The oath itself must be filed with the Superintendent of Banks where it is, of course, accessible to any person desiring to see the same. It is preliminary to becoming a statutory director. It is the credentials, as we may call it, or a part of them, of any person who assumes to act as a director of a trust company. It is his qualification in the method prescribed by law. He is required to so qualify himself by the solemnity of an oath. It is difficult to see why this does not prescribe the director’s duties and why by acquiescing in. and taking such oath he does not subscribe thereto. Under circumstances as disclosed by this indictment, assuming the indictment to be true, the director has clearly violated his oath as director and omitted to perform the duties prescribed by law.
Section 196 of the Banking Law prescribes the financial liability of directors who omit to perform their duty, and it is argued here that because that is prescribed there cannot be any criminal liability. If the statements in the indictment are true the financial liability of the defendant would impose no terrors upon him whatever and would in any case be no protection to the stockholders, depositors ór other creditors of a trust company.
I think the indictment is good and that the order and judgment sustaining the demurrer should be reversed.
Kellogg, J., concurred.
Judgment sustaining demurrer as to counts 2, 3 and 4 of the indictment reversed and judgment directed to be entered overruling the same and requiring the defendant to further plead.
