(concurring). I concur with Mr. Justice Ordway. The directors certainly were under a duty to see that the impairment of capital was made good. Banking Law, § 17, August, 1906.* Having chosen not to impose assessment on the shareholders as required by law, the directors were bound to contribute as the shareholders would have done — without creating a new liability on the part of the bank, either actual or contingent. It may also be noted that plain*677tiff, by virtue of his office, was required to be a shareholder (Id. § 50) and was under an obligation to make contribution as a gift and not as a loan.
It is impossible to suggest any motive for the contribution by the plaintiff other than the exigency that arose by reason of the impairment of capital and the superintendent’s requisition. To assume that plaintiff was unacquainted with the steps taken to apply the necessary remedy, is to assume that plaintiff, charged with the administration of the affairs of the bank (Id. § 43) and at a time when the very existence of the bank was threatened, was not performing his duty as director. Moreover, the very receipt on which plaintiff bases his claim shows that he had knowledge. Such receipt states that the contribution was made “ on account of fund loaned to bank by directors, to create a surplus fund, to be repaid as soon as bank’s earnings will permit.” The plaintiff, therefore, knew that a surplus fund was to be created by the directors; he also plainly knew that he was not making an ordinary loan.
See Laws of 1892, chap. 689, § 17, as amd. by Laws of 1905, chap. 649.— [Repr.