(dissenting). I dissent. I regret to have to differ with my colleagues in almost every respect in the view which they take of this appeal.
It is conceded that the plaintiff was not present at the meeting of the bank directors on August 16, 1906. I know of no principle whereby a director of any corporation as an individual is chargeable either impliedly or constructively with knowledge or notice of proceedings at which he was not present. I think, therefore, that in construing the relation between these parties in respect of the issue here presented neither the letter of the superintendent of banks nor the minutes of the directors which it called forth have any material bearing. Nor does the principle recognized in Leask v. Hoagland, 205 N. Y. 171, have any application in the *678sense indicated in the maj ority opinion herein. It is, in substance (citing from Nay v. Curley, 113 N. Y. 575), that “ in the absence of explanation, the presumption arising from the delivery of a check is that it was delivered in payment of a debt, and not as a loan. * * * But a check may represent a loan or a gift, or money of the drawer, to be applied by the drawee to the use of the former as his agent or otherwise.” •Later on the court approves of Stephen’s definition of a presumption as “a rule of law that courts shall draw a particular inference from particular facts unless and until the truth of the inference is disproved.” So far as the evidence in the instant case is concerned, plaintiff disproved any inference that might otherwise be drawn by showing the terms and conditions upon which his check for $125 to the order of the bank was delivered. This explanation is contained in the receipt of the cashier which specifies that the money was received “ on account of fund loaned to bank by directors to create a surplus fund, to be repaid as soon as the bank’s earnings will permit.” There is, therefore, no room left for presumptions or inferences other than the fact so proved.
I have at least grave doubt whether the cashier is not, by virtue of his office, warranted in fixing the terms of a loan to a bank, but that question is also, in my opinion, not involved here. Plaintiff paid to, or deposited with, the bank a sum of money on the conditions expressed by the cashier. If the cashier was without authority to establish these conditions as binding upon the bank, then the money does not become forfeited to the bank, but, on the contrary, belongs unconditionally to the plaintiff. But plaintiff’s proof went far beyond that point. He showed that other directors sent similar contributions, and that one of these directors inclosed his check in a letter reading:
*679‘ ‘ Enclosed please find my check * * * same to be used as private fund of loan to. bank by directors * * * to be repaid to me from the bank’s earnings as soon as practicable. ’ ’
This director was present at the meeting of the directors on August 16, 1906. The bank accepted and cashed the check inclosed in the letter above recited. This letter, therefore, in my opinion, was competent and material evidence as both an admission on the part of the bank of the character of the transaction authorized at the meeting, and as an implied ratification' of the act of the cashier in receipting for the moneys on that basis. Moreover, another of the directors was permitted to testify, without objection, that he contributed some of this money, and that ‘ ‘ according to his understanding,” it was to be a loan. In view of the informality of the trial, it might perhaps be said that this testimony is not entitled to its full apparent significance. But, on the other hand, the act of defendant’s attorney in permitting it to be offered without objection illustrates the actual position taken by the defendant at the trial, namely, that even though the directors individu-. ally understood their contributions to be a loan, and' the bank so accepted them, the illegality of the transaction, or possibly the attitude of the superintendent of banks in regard thereto, prevented the intention of the directors from becoming effective and imposed the will of the superintendent of banks upon them to the extent of creating a contract other than that which the parties may have intended. In other words, I do not think it was the contention of defendant’s counsel at the trial that the transaction was originally intended as between the bank and the directors to be other than a loan on the terms stated in the cashier’s receipt. But whatever his position may have been, I am of opinion that plaintiff has presented overwhelming evidence to *680the effect that it was such a loan. It seems to be equally clear that the letter of the superintendent of banks, written to the president of the defendant on December fourth, nearly four months after the transaction, and the reply of the president of the defendant to the superintendent, dated December twenty-first, are wholly incompetent as against this plaintiff. Their only materiality to the issues involved (if they are to be regarded as in evidence at all) is that they show beyond a doubt that the president was aware that the cashier had given the receipts in the form in which plaintiff’s receipt reads, and that the records of the bank disclosed that fact clearly to the superintendent. The existence of this condition for four months after the transaction, without objection on the part of the bank, constituted a further ratification of the authority of the cashier and a further confirmation of the original understanding of the parties in the premises. And finally, as an additional ratification and confirmation, we have the resolution adopted by the directors of the defendant years afterward, in which it was resolved that the Statute of Limitations should not apply to the $2,000 “ advanced by the directors of the bank.”
As I read the record, therefore, it seems to me that the evidence is conclusive to the effect that the transaction was as claimed by the plaintiff and as expressed in the receipt of the cashier, and this would be true even if the intention of the other directors in adopting the original resolution had been different. I do not think that the validity of the transaction under the Banking Laws of the state or the wishes or directions of the superintendent of banks had any materiality to the controversy. Whatever pains or penalties might be visited upon the plaintiff by virtue of any statute for a failure to perform, or an affirmative violation of, any statutory duty, this consideration could riot impose *681upon him a contract other than the one which had actually been made between himself and the defendant by mutual consent.
But since defendant’s counsel has throughout insisted upon the illegality of the entire transaction, and the majority opinion refers to the “ directors’ duty to take steps to make the impairment (of the capital) good,” that subject should perhaps not be left without some comment. I am not cited to any part of the Banking Law which imposes upon the directors the duty to take steps to make good an impairment of capital except to the extent that section 17 permits the superintendent of banks to require the capital to be made good, in which event the directors must give notice to the stockholders of the appropriate and adequate assessment. This provision suggests .that in the instant case the directors undertook to make good for the time being the impairment of the capital and to “ put in ” on behalf of the other stockholders their pro rata of this deficiency. While this transaction may not have been in strict compliance with the letter of the law or within the exact requirement of the superintendent of banks, had he imposed an assessment — which he did not — nevertheless it is clear that, under the plan as plaintiff has proved it to have been, an amount equivalent to the impairment was actually furnished to the bank irrevocably so far as the interests of the creditors might be concerned. It was only to be repaid to the contributing directors “ when the bank’s earnings will permit,” which must be interpreted as meaning when a surplus should exist. In the event of that contingency, however, the directors would have been at liberty to declare a dividend in the same amount. The substance of the transaction, therefore, as distinguished from its form, was an actual contribution by the directors on behalf of all the stockholders of the *682amount of the impairment with an assignment to these directors pro rata by each stockholder of his pro rata share of the first dividend which might be declared up to the amount of this total contribution.
We are not called upon to approve or disapprove the validity of a possible transaction in that form or to that effect; but it seems to me to be quite clear that in and of itself it would be meritorious on the part of the directors, advantageous to the creditors, and not unfair to the stockholders of the bank.
The judgment should be affirmed, with twenty-five dollars costs to the respondent.
Judgment reversed and new trial ordered, with costs to appellant to abide event.