. I do not concur in the affirmance of this judgment, as I do not think that the evidence sustains the finding of the jury-that the defendant took part in directing the receipt of • the deposit for the *211bank, knowing that it was insolvent. This action is based upon fraud in receiving the money of the plaintiff on deposit in the Madison Square Bank when the bank was insolvent. To entitle plaintiff to recover, the appellant must be proved guilty of the. fraud. It is well settled that where a banking corporation receives deposits from its customers when it is insolvent and known to he insolvent, a fraud is committed which justifies the customer in repudiating the transaction and recovering back from the corporation the money or securities so deposited; but this action is not against the bank or to recover possession' of the property acquired by the fraud, but is to hold the appellant, a director of the bank, personally responsible to the depositors for the amount of certain deposits that the plaintiff and his assignors had made with this insolvent bank after its insolvency had become known to its officers. It is not claimed that this appellant made any statement or representation to the plaintiff or to any one else as to the solvency of the bank which induced these deposits; nor was the appellant one of the executive officers of the bank who received the deposits. He was one of the directors of the bank. He had. nothing to do with the receipt of the deposits* nor did he know that the deposit's were made, and there is no evidence that when these deposits were actually made he knew or had reason to suppose that the bank was in immediate danger of being compelled to suspend its.business. There is evidence tending to show that on the day before these deposits were, made he saw a statement of the condition of the bank which indicated a considerable impairment of its capital, and there are expressions that he used in looking over this statement that would indicate he' had doubts about the bank’s solvency. This was on Saturday, August 5, 1893. On the Monday morning following, the appellant Uhlmanti and two- other directors of the bank, one of whom was its cashier, were present and had a talk about the bank’s receiving deposits. • It was stated that it would not be right for the bank to take deposits owing to the showing made by the statements, at which time McDonald, who was one of the directors present; told Thompson, who was the cashier, “ to take deposits on Monday by this method, that if a person owed the bank any money and the amount that lie owed the bank was in excess of his deposit then standing to his credit, that the amount should be entered on his pass boob. If it was less, why just give *212him a duplicate ticket and hold the book, and in case the depositor didn’t owe the bank any money to give him a duplicate deposit ticket and hold.the book on any pretext for balancing or whatever it might be.” Uhlmann does not seem to' have taken part in giving this direction. He had stated that he did not think the .bank should receive deposits, and was present, and without objection heard another director give his opinion to the. cashier, who was also a director, as to .what should be done as to deposits under the circumstances, and this is all the connection that Uhlmann had with the management or control of the bank in accepting deposits on Monday and Tuesday. On Monday the deposits seem to have been received under this suggestion of McDonald, and such deposits were put upon one side and not added to the general assets of .the bank but subsequently, on Monday afternoon, “ word was received from downtown,” after which time the deposits were entered on tne books of the bank, and checks and cash were put through, were made a part of the assets of the bank. On the evening of Monday, August 7, 1893, Uhlmann was present at the bank with his attorney. No meeting of the board of directors was held, and no official action was, taken by the board of directors in regard to continuing business. There is no evidence that the defendant interfered at all with the management of the bank, or that he knew that the arrangement about the receipt of deposits suggested by McDonald to the cashier on Monday morning had not been carried out, nor that this appellant could have in any way procured a meeting of the board of directors or procured official action which would have resulted in the bank’s closing its doors. He was not one of the executive officers of the bank charged with the management of its affairs from day to day, had no authority as a director to take the affairs of the bank out of the hands of its president and cashier. The prevailing opinion seems to place the ground of his liability upon the proposition that “ if for any reason he directed that deposits sheuld . be accepted in a qualified way so that the depositors should be protected, he was bound to see that the deposits thus received were kept in the manner in which the employees of the bank had been directed to keep them,” and it is from that proposition that I dissent. He as an individual director was no more bound to. see that the employees obeyed the directions which had been given to them in this respect *213than in any other. If he had heard the cashier of the hank directed not to certify checks of a particular customer, could he have been held liable because the cashier had disobeyed that instruction, or could it have been said that he was bound to stand by the cashier to see that the instructions were obeyed ? .1 think there is a plain distinction between the obligation resting upon a director of a bank and ■ its executive officers, president or cashier, and that to hold a director of a bank liable to a customer of the bank for fraud committed by its executive officers there‘must be proof of some declaration or act of the director connecting him with the transaction by which he has made himself a party to it and responsible for its consequences. That a fraud was committed when this bank received these deposits on Monday and Tuesday prior to its failure, and that the officers of the banking corporation who were directly responsible for the receipt of these moneys and who received them knowing ■ the bank to be insolvent, may be liable to the depositors for the fraud may be conceded. That a director of the bank, however, is so liable without proof of a direct participation in the receipt of the deposits, or proof of some official'act by which the bank was kept open after its insolvency had been ascertained, I do not believe. McDonald and Ulilmann, the two directors present at the time the suggestion as to the receipt of these deposits was made, had no authority to close the bank. As individuals they had no authority to control its management. They had no power to enforce a direction that ivas given, and it was quite evident that the executive officers of the bank refused to recognize their authority and overruled their advice. Upon what principle it can be said that they were responsible because the executive officers refused to take their advice and conduct the business as they thought in honesty and fair dealing it should be conducted, I am unable to see. Uhlmann had no more power to see to it that his recommendation was carried out than he had to close the doors of the bank and prohibit them from receiving deposits. He certainly cannot be said to have authorized the receipt of deposits under any other system than that advised on Monday morning, and it seems to Me that the plaintiff has lost the money because Uhlmann’s efforts to restrict the business of the bank in such a way that no fraud could be committed were unsuccessful. This decision certainly extends the liability of the directors of a cor*214poratioii much further than it has ever been extended before, imposing upon an individual director responsibility for the acts of the executive officers of a corporation over whom he has no individual control, and makes him liable for acts of the executive officers of the bank which he has no power to prevent.
I also think that the evidence as to the withdrawals by the State Treasurer and by the East River Bridge Company upon Tuesday evening, after it had been determined that the bank had to suspend, was incompetent as against the appellant;-and was calculated to and did seriously injure him with the jury. Certainly the action of the State Treasurer, in withdrawing this money on Tuesday night could have no possible relation to an act of the appellant on Saturday and Monday in beeping the bank open. The withdrawal of the. State .deposits was not instigated by the appellant and could have had no possible relevancy upon this-issue. ■
- I think the judgment should be reversed.
Judgment and order affirmed, with costs.