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 *449counts stated facts sufficient to constitute a crime, and that if they did, more than one crime was improperly stated therein. The trial court sustained the demurrer to the indictment, and the case is here upon appeal by the People.
. 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 *450expressly 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 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. *451It is also urged that defendant is not charged solely as the indictment purports .to do with omission to do his duty, but that in fact it alleges 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 and that because all these words except “permit ” imply affirmative action and that because he did things forbidden by law instead of passively not trying to stop the doing of forbidden things or doing nothing when he might have done something, that such part of the indictment is not good because defendant is not sufficiently apprised of what he is charged with. It seems to me that making full allowance for the technicalities of criminal law and even taking into full consideration the great amount of sophistry that passes for precedents in decisions in criminal cases, that this is a mere play upon words and that it is going far afield to set an indictment aside. It is plainly charged that Knapp omitted to do his duty by actually doing that which he was forbidden to do. If it was Knapp’s duty to go north and an indictment charged him with omitting to perform his duty and that he omitted it not only by failing to go north, but that he actually and continuously went south, the indictment would' be good, would it not ? If it was Knapp’s duty to heat a room to seventy degrees in zero weather and an indictment charged him with omitting to do his duty by failing to keep the room heated to seventy degrees and that he omitted it by actually putting the fire out and carrying away all combustibles with which the fire could even be started again, the indictment would be good even if in order to omit doing his duty he actually did something. In other words, Knapp is directly charged with omitting to do his duty by doing something:— by doing directly the opposite from what he should have done.
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.