Kelley v. Foster , 5 Silv. Sup. 476 ( 1890 )

Barnard, P. J.

In May, 1874, the Croton River National Bank went into voluntary liquidation. Francis E. Foster was the cashier of the bank. He collected the assets and paid the debts of the bank, and paid to the stockholders the full par value of the shares, and 25 per cent, beyond. The last payment was made December 11,1876. Foster died in November, 1886. There was no question made as to the failure of the cashier to pay over all he had received during his life, something over 12 years after the bank went into liquidation, and nearly 10 years after the last payment to the stockholders. Every intendment is in favor of the cashier after this lapse of time and long silence of the stockholders. The proof fails to show that the deceased cashier ever collected moneys which he has not accounted for. On December 23, 1873, a note was made by one Howes for $5,708.07, due in six months, with interest. There is no proof the note was ever paid to the bank, and there is no proof connecting the bank with it, except that it is entered as bills receivable in the bills receivable book of the bank. The note belonged to the plaintiff and the deceased cashier, unless the-bank discounted it, and this is not proven by the entry of the bills receivable book. This account does not show that the note was paid. It was the habit of the bank officers, whenever a bill receivable was paid, to enter the amount on a ticket, stating from whom it was received. This proof is equally inconclusive as to the note called the “Town Hall Note.” The claim is based upon memoranda found in the safe of the bank, in the cashier’s handwriting. There is nothing upon the memoranda to create a personal liability upon the cashier. They are wholly insufficient and inconclusive, and, in the absence of proof explaining them, mere nothing. The fact that a bank-book, which of necessity is more or less in the handwriting of the cashier, creates a liability personally upon him, as if he was responsible for all credits which appear upon the book to have been received, will be too severe a rule, as between the bank and its officers. The whole ’truth would need the other books of the bank. These are the chief items relied upon. The proof fails to establish them, as against the cashier. The judgment should therefore be affirmed, with costs.

Pratt, J., concurs.