Opinion
December Term, 1901.
John L. Hill, for the appellants.
Charles E. Hughes, for the respondent.
The original defendant in this action, a former president of the bank, died pending the action. Letters testamentary were issued to the appellants and thereupon a motion was made by the plaintiff to revive and continue the action against them. The motion was granted, and from the order entered thereon the executors have appealed.
The appellants contend that the cause of action does not survive against the legal representatives of the defendant Thomas C. Smith.
Under the Revised Statutes an action for wrong done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, can be maintained after his death against his executors or administrators in the same manner and with like effect as actions founded upon contract. (4 R.S. [8th ed.] 2671, § 1.) This provision is limited by section 2, which provides that the preceding section shall not be extended to actions for slander, or libel, or to actions for assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff. Under these provisions of the statute, which are in full force and effect ( Blake v. Griswold, 104 N.Y. 613), it is not essential that the wrongdoer should by the wrongful act have derived an advantage to himself, or acquired specific property by which or by the proceeds of which the assets in the hands of his personal representatives were increased.
In Cregin v. Brooklyn Crosstown R.R. Co. ( 75 N.Y. 192) Judge RAPALLO said: "Where an injury to pecuniary interests is shown, the intent of the statute seems plain that the cause of action shall survive, notwithstanding that such injury be caused by a tort, provided it be not one of the torts specifically mentioned and excepted in section 2. All pecuniary injuries (not resulting from the enumerated and excepted causes, such as assault and battery, slander, etc.) are placed upon the same footing when occasioned by a tort, as if arising from breach of contract, and such is the language of the statute."
The facts as pleaded show a cause of action in favor of the corporation and against the defendant to recover the actual loss or injury sustained by the plaintiff. The complaint alleges that the defendant Thomas C. Smith, while acting as president of the plaintiff corporation, loaned $45,000 of the money of the bank; that the loans were made unlawfully, imprudently and negligently, without the authority of the plaintiff and without adequate security being taken therefor; that the bonds deposited as security were unmarketable, less in value than the amount of the loans and wholly insufficient to secure the same; that the unmarketable and comparatively valueless character of the securities and their insufficiency as security for the loans were well known to the defendant; that only the sum of $2,500 was paid, and $5,846 received from the securities; and that no other or further sum can be collected or realized. The prayer of the complaint is for judgment against the defendant for the sum of $39,000, the damage caused by his negligence or wrong in the performance of his duties.
The relation between the bank and its president was that of principal and agent ( Hun v. Cary, 82 N.Y. 65), and the action was brought to recover damages for negligence upon the same principle that any agent is for like cause responsible to his principal. The president was bound to act in good faith, and to observe the limits placed upon his power. It was his duty to exercise reasonable care and diligence in loaning the moneys of the bank and determining the value of the securities, and for a failure in the performance of those duties he was liable for all damages to the bank caused by his culpable misfeasance or nonfeasance. ( Dykman v. Keeney, 154 N.Y. 483, 491.) There can be no doubt that the present action is one for a wrong done to the property, rights and interests of the plaintiff; that it is covered by section 1 of the Revised Statutes ( supra), and that the plaintiff is entitled to have it revived and continued against the appellants. ( O'Brien v. Blaut, 17 App. Div. 288.)
It follows that the order appealed from should be affirmed, with costs.
GOODRICH, P.J., BARTLETT, WOODWARD and HIRSCHBERG, JJ., concurred.
Order affirmed, with costs.