People's Trust Co. v. Pabst

The action is upon a promissory note and against an indorser. The note is for a renewal of $2,500 of a note for $3,00u.

Cross-examination of a witness for the plaintiff elicited that the maker of the note was a teller in the employ of the predecessor of the plaintiff when the original note was made, and that the consideration was a loan of $3,000 made to him by that bank. Thereupon the witness on redirect testified that the loan was approved by the directors or a majority thereof, under objection and exception that his answer was a conclusion. On recross it was developed that this bit of testimony was hearsay, and a motion was made to strike it out. The court reversed its decision, but never made it. The defendant made no other motion or request, save that at the close of the plaintiff’s case he moved for a dismissal on the grounds of failure of proof, that the note was void, and the plaintiff was not the holder in due course. The court reserved its decision on the motion, and finally filed its decision for the plaintiff. If the trial had been before a jury, the remedy of the defendant as to the incompetent testimony received was to ask the court to instruct the jury to disregard it. Holmes v. Moffat, 120 N. Y. at 163, 24 N. E. 275 . But, as in this case the jury was waived and the court in its decision wholly disregards the question now presented, I will discuss it' on the theory that there was no evidence that the loan was authorized by the directors. , '

“No officer, director, clerk or agent of any bank shall borrow from the bank with which he is officially connected any sum of money without the consent and approval of a majority of the board of directors thereof. Every person violating this provision shall, for each offense, forfeit to the people of the state twice the amount which he shall have borrowed.”

The contract is but malum prohibitum. The general rule is stated in Pratt v. Short, 79 N. Y. 445 , 35 Am. Rep. 531 , as follows:

“So, also, a prohibitory statute may itself point out the consequences of its violation, and if, on a consideration of the whole statute, it appears that the Legislature intended to define such consequences, and to exclude any other penalty or forfeiture than such as is declared in the statute itself, no other will be enforced, and if an action can be maintained on the transaction of which the prohibited transaction was a part, without sanctioning the illegality, such action will be entertained.”

See, too, McBroom v. Scottish Investment Co., 153 U. S. 323 , 14 Sup. Ct. 852 , 38 L. Ed. 729 ; Harris v. Runnels, 12 How. (U. S.) 79-84, 13 L. Ed. 901 . The subdivision quoted, supra, does not prohibit such transaction or declare it void, and it does provide an express penalty which is imposed on the borrower alone. If the Legislature had intended to impose any forfeiture or other penalty, I think that it would have so declared in express terms. The provision quoted, supra, is subdivision 4 of section 25, entitled “Restrictions.” By subdivision 1 of that section the Legislature absolutely prohibits certain loans and discounts. If the Legislature intended to prohibit or declare void the loans within the purview of subdivision 4, it is but reasonable to infer that it would have made a declaration similar to that made in subdivision 1 of the same section with reference to certain other loans or discounts.

None of the other questions raised require comment.

I advise affirmance of the judgment, with costs.

All concur.