App. Div.] Second Department, May, 1908. GAYNOR it is said that it was the duty of the learned counsel for the appellant in excepting to point out the error, but Kramer v. Brooklyn Heights R. R. Co. (190 N. Y. 310) alone is cited as an authority. That case only contains the proposition that a party should not be allowed upon appeal to take advantage of a lack of proof of a fact when it was assumed by both parties and the court at trial that the fact was admitted, or at least not controverted. The second question is whether the exception was well taken. The instruction of the court was not a correct statement of the statute existing at the time of these thefts. For the provision of the Banking Law then was and now is (§ 20)*: "Every such report shall be verified by the oath of the president and cashier or treasurer of such corporation or by such individual banker, to the effect that the same is true and correct in all respects, to the best of his knowledge and belief." Thus it appears that the learned court charged that the law was that the president must verify by an unqualified oath when the law required only an oath to the best of his knowledge and belief. The third question is whether the error is fatal to the judgment. "If it is possible that the defendant was injured by this error the verdict must be set aside. It is not for the defendant to show how or to what extent he was prejudiced. The existence of the error establishes his claim to relief. If the plaintiffs wish to sustain the verdict it is for them to show that the error did not and could not have affected it," citing authorities. (Greene v. White, 37 N. Y. 405.) If the court had instructed the jury that the oath was limited to the best of Prentice's knowledge and belief, can it be concluded that the jury would have found in such verification (and such was the verification actually made) evidence of negligence? It is to be noted that at no time was the oath as required by the statute stated to the jury, nor have we any proof that the jury ever heard read or ever read the statute. Indeed, at the close of the case the court asked the jury whether they desired to take any exhibit with them, and it does not appear that anything was submitted to them but a statement of the alleged items of loss. Even * See Laws of 1892, chap. 689, § 20, as amd. by Laws of 1898, chap. 333. Since amd. by Laws of 1905, chap. 297, and Laws of 1907, chap. 408.-[REP. Second Department, May, 1908. [Vol. 126. if the jury had before them in their jury room the reports as verified, can it be at all certain that they would have assumed that the reports were verified according to the statute when the court had instructed them that the oath thereto must be absolute? The verdict itself seems to indicate that the reports influenced the jury, for the following reason: The verdict represents the total deficit less $22,930 collected from Ahlmann's estate and $9,000. This $9,000 item represented a specific entry in the books of a loan to Ahlmann on August 8, 1903, without corresponding entry of repayment. The learned court charged the jury that whereas the other items of defalcation were due to acts of Ahlmann previous to the signing of the last quarterly report by Prentice, the loan to Ahlmann himself (i. e., this $9,000 item) "was made after the last quarterly report." The court was referring to the last report signed by Prentice, as it appeared that the final report was verified by Ahlmann alone at a time when Prentice was ill. Thus the jury, told by the court that the loss of $9,000 (as to which there was no conflicting evidence) was alone subsequent to any report signed by Prentice, excluded it alone from the alleged sum total of the loss charged against Prentice's estate. The action was not brought for the falsity of the reports under section 21 of the Banking Law* or section 611 of the Penal Code, but, as I have said, it rested upon negligence. These reports were read in evidence on the theory that the verification thereof by Mr. Prentice was a prescribed duty of the president. The statute requiring the oath does not prescribe in what respect the president or the cashier shall qualify himself to make the oath; it does not in any way bear on the supervising duties of either officer with reference to the affairs of the bank. The report is required of the officers by statute in order that primarily the Banking Department and secondarily others by publication thereof may have information from the principal officers of the bank of its condition, attested by their oath made to the best of their knowledge and belief. If it be false the direct remedy may be found in section 21 of the Banking Law, or it may be under section 611 of the Penal Code. (a) A substantial difference between the oath charged and the * Amd. by Laws of 1905, chap. 297.— [REP. App. Div.] Second Department, May, 1908. * oath in the statute book is shown by the fact that originally the statute read every such report should "be verified by the oath of the president and cashier * *to the effect that the same is true and correct in all respects" (Laws of 1892, chap. 689, § 20), and that by an amendment made by chapter 333 of the Laws of 1898 the limitation of the oath the qualification "to the best of his knowledge and belief" was grafted upon the statute. It seems to me that the reason for the modification is not far to seek. The Legislature thought that a conscientious bank president or official might discharge his duties to the full and yet be not qualified and could not in the nature of things qualify himself to make positive oath to the report and its details. The original requirement might exclude that kind of man required to discharge the duties of president or of cashier, and thus limit the occupancy of such places to those who would take such an oath without compunction, though it might in fact be "false as dicers' oaths." (b) I think that the jury in passing upon the negligence of Prentice, as evidenced by his acts of omission indicated by his act of commission in verification of the report, might not have found proof of his neglect therefrom if they had been informed, not that he must verify each report on oath, but on oath limited to the best of his knowledge and belief. Might not the jury, regarding the limitation of the oath in considering the qualification of the affiant, draw a distinction between the conscientious state of a mind required to make an oath or an oath to the best of his knowledge and belief? Might not a jury have concluded that Mr. Prentice was negligent in his qualification upon the facts when he came to take a positive oath and have concluded that he was not thus negligent when he came to take an oath to the best of his knowledge and belief? Knowledge" may mean that gained by information or intelligence. (Webster's Dict., Worcester's Dict., Cent. Dict., Imperial Dict., Stormonth's Dict.) "Knowledge is information and information knowledge," and it is "not confined to what we have personally observed." (2 Bouv. L. Dict. [Rawle's Rev.] 94, citing authorities. See, too, Iron Silver Mining Co. v. Reynolds, 124 U. S. 384; Lambert v. People, 76 N. Y. 220, 227, 228.) To one's knowledge means "so far as one is informed." (Cent. Dict.) Knowledge and belief is nothing more than a firm belief. (Anderson L. Dict.) 66 Second Department, May, 1908. [Vol. 126. We must take the word in its common acceptation, its plain, common, ordinary meaning. (Utley v. Hill, 155 Mo. 232; 49 L. R. A. 323.) What was the negligence attributed to the verification of the report? As the rule is that the respondent must establish that the error could not have affected the verdict (Greene v. White, supra; People v. Smith, 172 N. Y. 243), a discussion of this question is perhaps unnecessary even for the purpose of showing that the jury might have absolved the president if they had been instructed that he was only required to make a qualified oath to the reports. And I do not intend to be understood as intimating, much less declaring, that if the court had charged the jury correctly as to the oath, the jury could not have found negligence in the circumstances surrounding the verification of the reports by Prentice. (c) It does not satisfactorily appear that the opportunity to thus dispose of the securities was due to any failure on the part of Prentice to inspect the books and the investment account of the bank prior to the verification of the report. The reports, verified by Prentice and Ahlmann, seem to be in accord therewith. It is true that the investment account did not, as it had prior to 1902 and 1903, specify the securities, nor were they specifically listed in the books; but that is another matter. Whether Prentice knew this does not appear, but Wood knew it. The State Examiner had seen that system. (or omission, if you please), but it did not appear that he had made any sign or had taken steps in the way of requiring change of method. The negligence asserted necessarily was that Prentice did not see that the securities were on hand at the time when he verified the reports. The bank was in Stapleton, Richmond county; it was incorporated in 1885 with a capital of $25,000 of 500 shares with par value of $50 a share. When Ahlmann died he owned 347 shares. Augustus Prentice owned 10 shares. Ahlmann had been cashier since 1887 and always had owned a majority of the stock. He lived on Staten Island, was of good social standing, had gained the respect of the people about him and had demeaned himself so command confidence for his integrity and for his character. He was diligent and constant about the bank's business. In fine he was practically the bank, in its dealings with depositors and cus as to App. Div.] Second Department, May, 1908. tomers, as well as in its administration. Mr. Prentice had been president for many years. He was a lawyer with an office in Manhattan, New York city, where he lived. When these thefts were made he was seventy-seven years old, with impaired eyesight due to cataract which hindered his movements and even made it difficult for him to sign his name. Of course he is not to be acquitted of blame because of these infirmities, but I am stating all the circumstances. In the management of the bank or in its business routine with customers or depositors, he took little part in the latter years. No specific duties were cast upon him by resolution or by law. He received a salary of $500 a year. Ahlmann's salary was $5,000 a year. Of the other directors Finch lived near the bank and was a lawyer with his office in connection with that of Mr. Prentice. A. B. Prentice was the son of Augustus Prentice, a lawyer with offices with his father, and Wood was the assistant cashier who had worked his way up in the bank. Ahlmann went to the offices of Prentice twice a week, and would stay there about an hour discussing the bank, the different loans, the standing of the people in its community- whether they were people who should receive loans. A. B. Prentice would often enter into the discussion and Finch also would often take part. Up to December 18, 1902, the bank stood examination; the State Examiner then found matters correct, saw the assets of the bank and checked them with the books. Mr. Prentice was not an insurer of the honesty of the cashier. → (Bloom v. Nat. United Benefit Savings Co., 81 Hun, 127, and cases cited; S. C., 152 N. Y. 114, 121; Scott v. Depeyster, 1 Edw. Ch. 513.) The duty of the president is to preside, and his other duties may vary according to usage or by-law of the institution; "ordinarily the position is one of dignity, and of an indefinite general responsibility, rather than of any accurately known power." He, however, is "usually expected to exercise a more constant, immediate, and personal supervision" than an ordinary director. (Morse Banks & Banking [4th ed.], § 143.) The mere fact that Ahlmann had physical control of the securities was not necessarily evidence of the negligence of Prentice. Ahlmann as cashier was presumed to be the "principal executive officer" of the bank (City Bank of New Haven v. Perkins, 29 N. Y. |