DissentiNG Opinion.
Pochb, J.Icannoteoneur with the opinion and decree of the majority in this case.
It is conceded that Morris Dyer was an absolutely irresponsible person, and that the inscription of his name on the transfer-book of the bank, did not and could not have the legal effect of releasing his immediate transferer, as shown on the registry of the bank.
Hence it is that the receiver of the bank legally exercised his recourse against the plaintiffs, Lcsassier & Binder, whoso names appeared on the transfer-book of the bank, as the transferrers of the irresponsible or fictitious transferrec, Morris Dyer, and that his course in the premises was judicially sanctioned and approved.
For the same reason, and as a corollary of that proposition, flowed the conclusion that the receiver was not allowed to hold the defendant, *546Kennedy, as a shareholder; the transfer-hook did not show that he ha d ever owned the shares of the defunct hank stock, for which the receiver was seeking to levy and enforce contributions from any reputed or apparent holder of the same., other than Morris Dyer, the fictitious transferee, known to him as a negro porter at small wages.
The record shows the following as the real transactions affecting the forty shares of hank stock which have given rise to this litigation.
They were sold hy plaintiffs, through the broker, E. C. Feinour, to the defendant, Kennedy, and by him to Thomas A. Adams. Both of the latter are shown to fill all the requirements of responsible shareholders of such stock, under the National Bank Law.
■ To comply with the true state of things the transfer-book, at the date of the failure of the bank, should have shown the name of Adams as owner of the stock and as the proper party liable for contribution under the National Bank Law, and the book should also have shown the name of Kennedy as the transferee of plaintiffs and as the trans-ferrer of Adams.
Under such a showing no call could have been made on Lesassier & Binder, and to such a showing they were legally entitled.
In default of such a showing they were legally and properly held liable for contributions which they paid under the judgment of a competent court.
The question in the case is, therefore, to ascertain through whose act has the result, visited on the plaintiffs, been operated or brought about.
The record shows that Feinour, the broker, was instructed by his principal, Kennedy, not to enter the latter’s name as transferee under the purchase from plaintiffs, for four or five days, and that a.t the end of that time he was instructed to inscribe his principal’s name in pencil in the margin of the transfer-book. And the evidence thus shows that, after his sale of the stock to Adams, in furtherance of the latter’s request, Kennedy filled the blank in the transfer signed by plaintiffs on the 24th of February, by inserting, in ink, in his own writing, the name of Dyer.
Through and in consequence of the acts of Kennedy the plaintiffs have suffered a loss which they would not otherwise have incurred.
Hence the conclusion that the party whose acts have caused the damage should be held responsible therefor, is irresistible.
The judgment appealed from should, therefore, have been affirmed.
Kehearing refused.