#### The Chemical National Bank of New York, Appellant, *against*Jette Kohner *et al.*Administrators, &c., of Joseph Kohner, Deceased, Respondents.

(Decided February 2d. 1880.)

A cashier of a bank, except by special instructions or established usage, has no power to compromise claims due to it. This is a power which belongs to the board of directors, and can only be exercised by them or persons to whom they

have delegated it.

The nature of the office of cashier of a bank, and his ordinary powers and duties, considered and pointed out.

Appeal by the plaintiff from a judgment of this court dismissing the complaint, entered on the report of a referee to hear and determine the issues.

The facts are stated in the opinion.

*Charles Jones John E. Roosevelt,*for appellant.

*B. F. Watson,*for respondents.

Larremore, J.

In November, 1872, the firm of Griffith & Prentiss made and executed to their own order their four _several promissory notes, amounting in the aggregate to '$15,330 20, which said notes were endorsed by said Griffith & Prentiss and Joseph Kohner, the defendant’s intestate. When said notes became due the said firm were unable to pay the same in full. At this time said firm were indebted to the Bank of New York and the Central Bank of New York upon notes upon which also said Joseph Kohner was endorser. For the purpose of making a composition of their debts with the banks above mentioned, Charles Griffith, a member of said firm, in November, 1873, applied to the Bank of New York, through its officers, to compromise the ind -btedness of Joseph Kohner to that bank by accepting twenty-*531five cents on the dollar in satisfactory notes, and was told b}" the officers to whom such application was made that they would do whatever the Chemical Bank did. A similar application was made to the president of the Central Bank, •who replied that “ they would have nothing to do with any paper or any note; that any settlement he made would be money; that he would have nothing to do with Mr. Kohner in any form excepting money.” Mr. Griffith called at the Chemical Bank and made a similar application. Mr. Wil-‘ liams, the cashier, wrote and delivered to Mr. Griffith the following letter:—

> “ Chemical National Bank,

> “ New York, *November 14th,*1873.

> “ C. P. Leverich, Esq.

> “Dear Sir,—At the request of Mr. Griffith I beg to say that we propose to take the notes of Jos. Kohner, endorsed by J. A. Goldsmith, for 25 cents on the dollar of his indebtedness to us, and discharge him in full when the notes are paid, holding, of course, Griffith for the balance.

> “ Very respectfully,

> “ G. G. Williams,

> “ Cashier.”

This letter was delivered by Griffith to the president or cashier of the Bank of New York and left there. Evidence was offered on behalf of the plaintiff, that Mi-. Williams, on the afternoon of November 14th, 1873—the same day on which the letter was written—reported this fact to the president of the Chemical Bank, who disapproved thereof, and it was decided not to make the proposed settlement with Kohner and to notify the Bank of New York of such conclusion; and further, that the next day such notice was given to the Bank of New York before it had acted upon the letter. The referee refused to find the matters of fact above stated, as claimed by the plaintiff to have been proven, to which refusal an exception was taken. On December 20th, 1873, the claim of the Central Bank against Kohner and the claim of the Bank of New York against him were settled on *532the basis of the agreements respective!y made by said banks with Mr. Griffith. On the day last named a tender was made to the Chemical Bank through its cashier of the notes, payable in six months,—which notes, it is claimed, were those intended by the letter of November 14th, 1873,—which the bank refused to accept. On the same day a certified cheek for an amount equal to that of the notes was tendered to the Chemical Bank, which it also refused to accept. Both the notes and check thus tendered were subsequently destroyed. No further offer to pay the note was made, and it has not since been paid.

In April, 1874, this action was commenced upon the four promissory notes hereinbefore mentioned. The complaint sets forth the making and delivery of said notes, their nonpayment and protest at maturity, and demands judgment against the defendant for their aggregate sum of $15,330 20, with interest, protest fees and the costs of the action.

The defendant in his answer admits, by not denying, the facts alleged in said complaint, and sets forth, as a defense, the letter of November 14th, 1873, by way of accord and satisfaction in full release of plaintiff’s claim. That in accordance with the agreement therein contained, and relying thereupon, the defendant’s intestate had settled with his said other creditors on the basis thereof; that he had tendered a settlement to the plaintiff upon the same terms and in the manner agreed upon, which plaintiff refused to accept; and that defendant has ever since been, and still is ready and willing, and hereby offers to pay said proportion of said notes, and therefore prays judgment in his favor.

The action was referred by consent; the referee found judgment for defendant, from which this appeal is taken.

I have examined with great interest and satisfaction the opinion of the learned referee who tried this action, and while assenting to most of the legal propositions therein advanced, feel constrained to differ from his conclusion of law upon the question of *estoppel in pais.*It is proper, therefore, that the subject be first considered, for in my judgment it is the pivotal point upon which the whole case turns.

*533What authority had the cashier of the Chemical Bank to write the letter of November 14th, 1873, and what liability did said bank incur by reason of said letter?

To accurately define and limit the powers and duties of a cashier of a bank within the compass of an ordinary opinion from the bench would he unsatisfactory and profitless. Groping through usages that are at variance with each other in different States and institutions, a brief reference to general principles of elementary law will suffice for our present purpose.

It appears to be conceded by all writers on this important subject of banks and banking that a cashier is the business officer of a bank, but only in the sense of one who transacts and not of one who regulates or controls its affairs. His duty has reference to daily routine business and not to matters involving discretionary authority, which belongs, unless delegated, to the board of directors, as has been quaintly said, “ they are the mind and he is the hands of the corporation.” Another writer likens the directors to the judges and the cashier.to the clerk of a court. The former adjudicate and direct, the latter execute their mandate. *(United States*v. Dunn, 6 Peters, 51; *United States*v. *City Bank of*Columbus, 21 How. [U. S.] 356-364 ; Holmes C. C. 209 *; Dabney*v. Stevens, 10 Abb. Pr. Rep. N. S. 39 ; *Adriance*v. Roome, 52 Barb. 399.) Such an officer, publicly .acknowledged as such, is invested with such power as judicial sanction or banking usages have recognized and acknowledged, as belonging to the office he holds, and it is for the court to decide whether or not any particular duty is within his authority. The bank would not be responsible for acts of his which are discretionary, semi-official, and solely within the prerogative of the directors, though done in good faith, under color of authority, and affecting an innocent dealer. (Morse on Banks and Banking, pp. 156 and 157 ; *Morse*v. *Massachusetts Nat'l*Bank, 1 Holmes C. C. Rep. 209.) An enumeration of the general powers and duties of a cashier as derived from text-books and judicial decisions may be stated as follows:—

> *534Collection and payment of debts.

> Power of borrowing money in ordinary course of the daily business of the bank.

> Power to draw checks upon its money in other institutions.

> Power to endorse its negotiable paper.

> Power to conduct its correspondence.

> Power to transfer its shares of stock.

It will not be disputed that where a special authority is conferred upon him, or where he acts in conformity with a general usage, or an established acquiescence of his board of directors, the' bank will be responsible for such acts, though beyond the ordinary scope of his duties. *(Elwell*v. *Dodge,*33 Barb. 336 ; *City Bank of New Haven*v. Perkins, 4 Bosw. 420.)

But where is the proof in this case of authority to compromise a debt, either by resolution, parol or usage ? Such a power, it is said, “ is discretionary, calling oftentimes for the exercise of considerable reflection and a high degree of judgment. It is strictly a sacrifice at least of nominal property of the bank, and is a function of the board of directors, and not of an executive officer.” All the cases agree in this, but hold that such authority may be delegated. The decision in *Bank of Pennsylvania*v. *Reed*(1 Watts & S. 101), while intimating that such an authority might be exercised in a particular case, and under pressure of circumstances and necessity, holds that it must, in order to be in consonance with .the general principles of law already cited, be construed to refer to a stringent, and not an ordinary necessity, and the act performed must be one that might be authorized by a usage or a directorial note. *(Watson*v. *Bennett,*12 Barb. 196 ; *Barrick*v. *Austin,*21 Id.*241 ; Adriance*v. *Roome,*52 Id. 399.)

From what source, then, did the cashier of the Chemical Bank derive his authority to release an obligation held by it in favor of the defendant ? Certainly not under his right to conduct the correspondence of the bank, for, under such power, he could only communicate its action. We have *535seen that the right claimed was not'within his general powers as cashier, and there is no proof that authority in this respect was ever delegated to him, or of any existing usage on the subject.

If this view be correct, it follows that the complaint herein should not have been dismissed.

I think it would be error to hold plaintiff estopped by the lc.icr of November 14th, 1873, even conceding, for the sake of argument, that Williams was the plaintiff’s duly authorized agent in writing it. At the most, it was but a private communication addressed to C. P. Leverich, Esq., in his individual capacity, informing him of what the plaintiff proposed to do in the premises. It was not a composition agreement, in which the creditors were named and containing mutual covenants, and in the execution of which the creditors or some of them joined, as in *Renard*v. *Tuller*(4 Bosw. 107) and *Hall*v. *Merrill*(5 Bosw. 266), but a letter containing a proposition that might have been revoked before it was acted upon. This the plaintiff sought to do, but the testimony offered upon this point was excluded and an exception taken. Mr. Griffith, one of defendant’s witnesses, was allowed to testify under plaintiff’s exception to a conversation between himself and the president or cashier of the Bank of New York. The testimony rejected had reference to the subject-matter of this action, and should not have been excluded, and the exceptions at folios 139 to 142 were well taken.

Another feature of this case should not be overlooked. The defendant in the answer avers and admits that the alleged composition agreement is still in force, and that he has been, and still is, ready and willing, and therein offers to pay the twenty-five cents per dollar of plaintiff’s claim, in pursuance of such agreement. If .this be a fact—and the referee has so found—I am unable to perceive why the plaintiff should not have had a judgment for the amount due upon the agreement. If it ever had a legal existence, the plaintiff could not rescind it and the defendant has affirmed it.

*536But it is unnecessary to review the numerous exceptions raised. I place my judgment on the broad ground of want of legal authority in plaintiff’s cashier to compromise the claim in question, or execute a composition agreement and release therefor. For this reason I am of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Charles P. Daly, Ch. J., and Van Brunt, J., concurred. •