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himself be free from negligence. He must furnish the exert some influence over the conduct of the other, servant the means and appliances which the service and thus to some extent provide for bis own security, requires for its efficient and safe performance, unless yet that it could not apply where two or more are emotherwise stipulated; and if he fail in that respect, ployed in different departments of duty at a distance and an injury result, he is as liable to the servant as he from each other, and where one can in no degree conwould be to a stranger. In other words, whilst claim- trol or influence the conduct of another, it answered ing such exemption he must not himself be guilty of that the objection was founded upon a supposed digcontributory negligence.

tinction, on which it would be extremely difficult to When the service to be rendered requires for its per- establish a practical rule. “When the object to be formance the employment of several persons, as in accomplished," it said, “is one and the same, when the movement of railway trains, there is necessarily the employers are the same, and the several persons incident to the service of each the risk that the others employed derive their authority and their compensamay fail in the vigilance and caution essential to his tion from the same source, it would be extremely difsafety. And it has been held in numerous cases, both ficult to distinguish what constitutes one department in this country and in Englaud, that there is implied and what a distinct department of duty. It would in his contract of service in such cases that he takes vary with the circumstances of every case." And it upon himself the risks arising from the negligence of added, “that the argument rests upon an assumed his fellow servants, while in the same employment, principle of responsibility which does not exist. The provided always the master is not negligent in their master, in the case supposed, is not exempt from liaselection or retention, or in furnishing adequate ma- bility because the servant has better means of providterials and means for the work; and that if injuriesing for his safety, when he is employed in immediate then befall him from such negligence, the master is counection with those from whose negligence he might not liable. The doctrine was first announced in this suffer, but because the implied coutract of the master country by the Supreme Court of South Carolina in does not extend to indemnify the servant against the 1841, in Murray v. Railroad Co., 1 McMullan, 385, and negligence of any one but himself; and be is not liable was affirmed by the Supreme Court of Massacbusetts iu tort, as for the negligence of his servant, because the following year in Farwell v. Boston and Worcester the person suffering does not stand toward him in the R. Co., 4 Met. 49. In the South Carolina case a fire- relation of a stranger, but is one whose rights are man, whilst in the employ of the company, was in- regulated by contract, express or implied.” 4 Met. jured by the negligence of an engineer also in its em- 49, 60. ploy, and it was held that the company was not liable, The opinion in this case, which was delivered by tbe court observing that the engineer no more repre- Chief Justice Shaw, has exerted great influence in sented the company than the fireman; that each in his controlling rhe course of decisions in this country. In separate department represented his principal; that several States it has been followed, and the English the regular movement of the train of cars to its desti- courts hare cited it with marked commendation. nation was the result of the ordinary performance by The doctrine of the master's exemption from liabi)each of his several duties; and that it seemed to be on ity was first distinctly announced in England in 1850 the part of the several agents a joint undertaking by the Court of Exchequer in Hutchinson v. The York, where each one stipulated for the performance of his New Castle and Berwick R. Co., 5 Exch. 343; Priestly several part; that they were not liable to the company v. Fouler, 3 Mees. & Wels. 1, which was decided in for the conduct of each other, jor was the company 1837, and is often cited as the first case declaring the liable to one for the conduct of another, and that as a doctrine, did not directly involve the question as to general rule, when there was no fault in the owner, he the liability of a master to a servant for the negligence was only liable to his servants for wages.

of a fellow servant. In that case a vau of the defeudIn the Massachusetts case, an engineer employed by ant in which the plaintiff was carried was out of rea railroad company to run a train on its road was in- pair and overloaded, and consequently broke down and jured by the negligence of a switch-tender also in its caused the injury complained of; but it did not apemploy, and it was held that the company was not pear what produced the defect in the van or by whom liable. The court placed the exemption of the com- it was overloaded. The court in giving its decision pany, not on the ground of the South Carolina decis- against the plaintiff observed that if the master was ion, that there was a joint undertaking by the fellow liable, the principle of that liability would “carry us servants, but on the ground that the contract of the to an alarming extent;” and in illustration of this engineer implied that he would take upon himself the statement said that if the owner of a carriage was rerisks attending its performance, that those included sponsible for its sufficiency to his servant, he was the injuries which might befall him from the negli- | under the principle responsible for the negligence of gence of fellow servants in the same employment, and his coach-maker or barness-maker or coachman, and that the switch-tender stood in that relation to him. mentioned other instances of such possible responsiAnd the court added, that the exemption of the mas- bility to a servant for the negligence of his fellows,con. ter was supported by considerations of policy. “When cluding that the inconvenience of such consequences several persous," it said, “are employed in the con- afforded a sufficient argument against the applicaduct of ove common enterprise or undertaking, and tion of the principle to that case. The case therefore the safety of each depends on the care and skill with can only be considered as indirectly asserting the doc. which each other shall perform his appropriate duty, trine. At any rate, the Hutchinson case is the first each is an observer of the conduct of the others, can one where the doctrine was applied to railway service. give notice of any misconduct, incapacity or neglect There it appeared that a servant of the company, who of duty, and leare the service, if the common em- in the discharge of his duty was riding on one of its ployer will not take such precautions and employ such trains, was injured by a collision with another train agents as the safety of the whole party ly require. of the same company, from which his death ensued; By these means the safety of each will be much more and it was held that his representatives could not reeffectually secured than could be done by a resort to cover as he was a fellow servant with those who caused the common employer for indemnity in case of loss by the injury; and the court said tbat whether the death the negligence of each other.” And to the argument, resulted from the mismanagement of the one train or which was strongly pressed, that though the rule the other, or of both, did not affect the principle. The might apply where two or more servants are employed | rule was applied at the same time hy that court to ex. in the same department of duty, where each one cau empt a master builder from liability for the death of a


bricklayer in his employ caused by the defective con- it was also utterly unknown to the law of England, struction of a scaffolding by his other workmen, by and added: “To bring the case within the exemptiou reason of which it broke and the bricklayer at work there must be this most material qualification, that upon it was throwu to the ground and killed. Wig- the two servants must be meu in the same common more v. Jay, 5 Exch. 354.

employment, and eugaged in the same common work The doctrine assumes that the servant causing the under that common employmeut.” injury is in the same employment with the servant Later decisions in the English courts extend the injured, that is, that both are engaged in a common master's exemption from liability to cases where the employment. The question iu all cases therefore is, servant injured is working under the direction of a what is essential to render the service in which differ- foreman or superintendent, the grade of service of the ent persons are engaged & common employment? And latter not being deemed to change the relation of the this question bas caused much conflict of opinion be- two as fellow servants. Thus in Wilson v. Merry, detween different courts, and often much vacillation of cided by the House of Lords in 1868 on appeal from opinion in the same court.

the Court of Session of Scotland, the sub-manager of In Bartonshill Coal Co. v. Reid, and the same company a coal pit, whose negligence in erecting a scaffold 1. McGuire, reported in 3 Macqueeu, 266 aud 300 H. L. which obstructed the circulation of air underneath, Cases, decided in 1858, the parties injured were miners and led to an accumulation of fire-damp that exploded employed to work in a coal pit, and the party, whose and injured a workman in the mine, was held to be a vegligence caused the injury, was employed to attend fellow servant with the injured party. And the court to the engine by which they were let down into the laid down the rule that the master was not liable to mine and brought out, and the coal was raised which his servant unless there was negligence on the masthey had dug; and it was held that they were engaged ter's part in that wbich he had contracted with the in a common work, that of getting coal from the pit. servant to do, and that the master, if not personally "The miners," said the court in the latter case, superintending the work, was only bound to select "could not perform their part unless they were low- proper aud competent persons to do so, and furnish ered to their work, nor could the end of their com- them with adequate materials and resources for the mou labor be attaived unless the coal which they got work; that when he had done this he had done all was raised to the pit's mouth, and of course at the that he was required to do, and if the persons thus close of their day's labor the workmen must be lifted selected were guilty of negligence, it was not his negout of the mine. Every person who engaged in such ligence, and he was not responsible for the consean employment must have been perfectly aware that quences. L. R., 1 H. L. Scotch App. 326. In this case, all this was incident to it, and that the service was as in many others in the English courts, the foreman, necessarily accompanied with the danger that the per. manager or superintendent of the work, by whose neg808 intrusted with the machinery might be occasion. | ligence the injury was committed, was himself also a ally negligent and fail in his duty.” Lord Chaucellor workman with the other laborers, although exercising Chelmsford, who gave the principal opinion in the lat- a direction over the work. The reasoning of that case ter case, referred to previous cases in which the mas- has been applied so as to include, as contended here, ter's exemption from liability had been sustained, and employees of a corporation in departments separated said: “In the consideration of these cases it did not from each other; and it must be admitted that the become necessary to define with any great precision term “cominon employment," under late decisions what was meant by the words .common service' or in England, and the decisions in this country followcommon employment,' and perhaps it might be diffi

ing the Massachusetts case, is of very comprehensive cult beforehand to suggest any exact definition of | import. It is difficult to limit it so as to say that them. It is necessary however in each particular case any persons employed by a railway company, whose to ascertain whether the servants are fellow laborers labors may facilitate the ruuning of its trains, are not is the same work, because although a servant may be

fellow servants however widely separated may be their takeu to bave engaged to encounter all riske which

labors. See Holden v. Fitchburgh R. CO., 129 Mass. are incident to the service which he undertakes, yet

268. he canuot be expected to anticipate those which may But notwithstanding the number and weight of such bappen to him on occasions foreign to his employ

decisions, there are in this country many adjudicament. Where servants therefore are engaged in dif- tions of courts of great learning, restricting the exferent departments of duty, an injury committed by emption to cases where the fellow servants are en one servaut upon another, by carelessness or negli

gaged in the same department, and act under the same gence in the course of his peculiar work, is not within

immediate direction; and holding that within the reathe examination, and the master's liability attaches in son and principle of the doctrine, only such servants that case in the same manner as if the injured servants can be considered as engaged in the same common emstood in no such relation to him." The lord chancel- ployment. It is not however essential to the decision lor also commented upou some decisions of the Scotch of the present controversy to lay down a rule which courts, and among others that of McNaughton v. Cale

will determine, in all cases, what is to be deemed such donian R. Co., 19 Ct. of Sess. Cas. 271, and said that it an employment, even if it were possible to do so. might be sustained without conflicting with the There is, in our judgment, a clear distinction to be English authorities ou the ground that the workmen made if their relation to their common principal, bein that case were engaged in totally different depart- tween servants of a corporation, exercising no superments of work; the deceased being a joiner or car

visiou over others engaged with them in the same empenter, who at the time of the accident was engaged ployment, and agents of the corporation, clothed with in repairing a railway carriage, and the persons by the control and management of a distinct department, whose negligence his death was occasioned, were the in which their duty is entirely that of direction and same engine driver and the persons who arranged the superintendence. A conductor, baving the entire conswitches." And in the same

case Lord Brougham, trol and management of a railway train, occupies a after mentioning the observations of a judge of the very different position from the brakemen, the porScottish courts, that an absolute and inflexible rule ters, and other subordinates employed. He is in fact releasing the master from responsibility in every case and should be treated as the personal representative of where one servant is injured hy the fault of another the corporation, for whose negligence it is responsible was utterly unknown to the law of Scotland, said that

to subordinate servants. This view of his relation to the

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corporation seems to us a reasonable and just one, and thority to employ and discharge laborers and employit will insure more care in the selection of such agents, ees, provide materials and machinery for the service and thus give greater security to the servants engaged of the corporation, and generally direct and control under him in an employment requiring the utmost under general powers and instructions from the direcvigilance on their part, and prompt and unhesitating tors, may well be regarded as the representatives of obedience to his orders. The rule which applies to the corporation, charged with the performance of its such agents of one railway corporation must apply to duties, exercising the discretion ordinarily exercised all, and many corporations operate every day several by principals, and within the limits of the delegated trains over bundreds of miles at great distances apart, authority, the acting principal. These acts are in such each being under the control and direction of a con- case the acts of the corporation, for which and for ductor specially appointed for its management. We whose peglect the corporation, within adjudged cases, know from the manner in which railways are operated, must respond, as well to the other servants of the that subject to the general rules and orders of the di. company as to strangers. They are treated as the genrectors of the companies, the conductor has entire con

eral agents of the corporation in the several departtrol and management of the train to which he is as. ments committed to their care.” 64 N. Y. 5, 12. See signed. He directs when it shall start, at what speed also Corcoran v. Holbrook, 59 id. 517. it shall run, at what stations it shall stop, and for In Little Miami R. Co. v. Stevens, the Supreme what length of time, and every thing essential to its Court of Ohio held that where a railroad company successful movements, and all persons employed on it placed the engineer in its employ under the control of are subject to his orders. In no proper sense of the a conductor of its train, who directed when the cars terms is he a fellow servant with the fireman, the were to start, and when to stop, it was liable for an inbrakemen, the porters and the engineer. The latter jury received by him caused by the negligence of the are fellow servants in the running of the train under conductor. 20 Ohio, 415. There a collision between his direction, who, as to them avd the train, stands in two trains occurred in consequence of the omission of the place of and represents the corporation. As ob- the conductor to inform the engineer of a change of served by Mr. Wharton in his valuable Treatise on the places in the passing of trains ordered by the comLaws of Negligence: It has sometimes been said that pary. Exemption from liability was claimed on the a corporation is obliged to act always by servants, and ground that the engineer and conductor were fellow that it is unjust to impute to it personal negligence in servants, and that the engineer had in consequence cases where it is impossible for it to be negligent per-| taken, by his contract of service, the risk of the negsonally. But if this be true it would relieve corpora- ligence of the conductor; and also that public policy tions from all liability to servants. The true view is, forbade a recovery in such cases. But the court rethat as corporations can act only through superintend- jected both positions. To the latter it very pertinently ing officers, the negligence of those officers with re- observed that it was only when the servant had himspect to other servants are the negligences of the cor- self been careful that any right of action could accrue poration." $ 232 a. The author in a note refers to to him, and that it was not likely that any would be Brickoner v. New York Cent. R. Co., decided in the careless of their lives and persons or property merely Supreme Court of New York, and afterward affirmed because they might have a right of action to recover in the Court of Appeals; and to Malone v. Hathaway, for injuries received. “If men are influenced," said decided in the latter court, in which opiuions are ex. the court, “by such remote considerations to be carepressed in conformity with his views. These opivious less of what they are likely to be most careful about, are not, it is true, authoritative, for they do not cover it has never come under our observation. We think the precise points in judgment; but were rather ex- the policy is clearly on the other side. It is a matter pressed to distinguish the questions thus arising from of universal observation that in any extensive business those then before the court. They indicate however a where many persons are employed, the care and prudisposition to engraft a limitation upon the general dence of the employer is the surest guaranty against doctrine as to the master's exemption from liability | mismanagement of any kind." In Railway Co. v. to his servants for the negligence of their fellows, when Kerry, 3 Ohio St. 201, the same court affirmed the doca corporation is the principal, and acts through super- trive thus announced, and decided that when a brakeintending agents. Thus in the first case the court said: man in the employ of a railroad company, on a traiu "A corporation cannot act personally. It requires under the control of a conductor baving exclusive com: some person to superintend structures, to purchase and maud, was injured by the carelessness of the conduccontrol the running of cars, to employ and discharge tor, the company was responsible, holding that the men, and provide all needful appliances. This can conductor in such case was the sole and immediate only be done by agents. When the directors them- representative of the company upon which rested the selves personally act as such ageuts they are the rep- obligation to manage the train with skill and care. In resentatives of the corporation. They are then the the course of an elaborate opinion the court said that executive head or master. Their acts are the acts of from the very nature of the contract of service between the corporation. The duties above described are the the company and the employees, the company was usduties of the corporation. When these directors ap- der obligation to them to superintend and control with point some person other than themselves to superin- skill and care the dangerous force employed, upon tend and perform all these executive duties for them, which their safety so essentially depended. · For this then such appointee, equally with themselves, repre- purpose,” said the court, “the conductor is employed, sents the corporation as master in all these respects. and in this he directly represents the company. They And though in the performance of these executive contract for and engage his care and skill. They comduties he may be, and is, a corporation, he is not in mission him to exercise that dominion over the operathose respects a co-servant, a co-laborer, a co-em- tious of the train which essentially pertains to the preployee, in the common acceptation of those terms, any rogatives of the owner, and in its exercise he stands in more than is a director who exercises the same au- the place of the owner, and is in the discharge of a thority.” 2 Lans. 516. Affirmed in 49 N. Y. 672.

duty which the owner, as a man and a party to the conAud in Malone v. Hathaway, in the Court of Ap- tract of service, owes to those placed under him, and peals, Judge Allen says: Corporations necessarily whose lives may depend on bis fidelity. His will alone acting by and through agents, those having the super- controls every thing, and it is the will of the owner intendence of various departments, with delegated au- that his intelligence alone should be trusted for this


purpose. This service is not common to him and the until the gravel train, coming on the same road from bands placed under him. They have nothing to do an opposite direction, had passed; and the court with it. His duties and their duties are entirely sep. | charged the jury that if they so found, and if the arate and distinct, although both necessary to produce | plaintiff did not contribute to bio injury by his owu the result. It is his to command, and theirs to obey | negligence, the company was liable, holding that the and execute. No service is common that does not ad- relation of superior and inferior was created by the mit a common participation, and no servants are fel

company as between the two in the operation of its low servants when one is placed in control over the train; and that they were not within the reason of other."

the law fellow servants engaged in the same common In Louisville & Nashville R. Co. v. Collins, 2 Duvall, employment. 114, the subject was elaborately considered by the Court As this charge was in our judgment correct, the of Appeals of Kentucky. And it held that in all those plaintiff was entitled to recover upon the conceded operations which require care, vigilance and skill, and negligence of the conductor. The charge on other which are performed through the instrumentality of points is immaterial: whether correct or erroneous, it superintending agents, the invisible corporation, could not have changed the result; the verdict of the though never actually, is yet always constructively jury could not have been otherwise than for the plaintpresent through its agents who represent it, and whose | iff. Without declaring therefore whether any error was acts within their representative spheres are its acts; committed in the charge on other points, it is sufficient that the rule of the Englisb courts, that the company to say that we will not reverse the judgment below if is not responsible to one of its servants for an injury an error was committed on the trial which could not inflicted from the veglect of a fellow servant, was not have affected the verdict. Brobst v. Brock, 10 Wall. adopted to its full extent in that State, and was re- 519. Aud with respect to the negligence of the congarded there as anomaluus, inconsistent with princi- ductor of the gravel train, no instruction was given or ple and public policy, and unsupported by any good requested. and consistent reasou. In commeuting upon this de

Judgment affirmed. cision in his treatise on the Law of Railways, Red- Contra: Nashville, etc., R. Co. v. Wheless, 10 Lea, field-speaks with emphatic approval of the declaration 741; S. C., 43 Am. Rep. 317; Robertson v. Terre Haute, that the corporation is to be regarded as constructively etc., R. Co., 78 Ind. 77; S. C., 41 Am. Rep. 552; Slater present in all acts performed by its general agents with- v. Jewett, 85 N. Y. 61; 8. C., 39 Am. Rep. 627; Rodin the scope of their authority. “The consequences man v. Michigan Central R. Co., 20 N. W. Rep. 788, of mistake or misapprehension upon this point," Sup. Ct. Mich.-ED. says the author, “have led many courts into conclusions greatly at variance with the common instincts of reason and humanity, and have tended to interpose NEW YORK COURT OF APPEALS ABSTRACT. an unwarrantable shield betweeu the conduct of railway employees and the just responsibility of the com

CONTRACT-GUARANTY-CONSIDERATIONpany. We trust that the reasonableness and justice of

OF FRAUDS-COLLATERAL.- Defendants guaranteed, in this construction will at no distant day induce its uni- writing, the return in six months of certain bonds versal adoption." Vol. 1, 554.

loaned by plaintiffs to the R. I. M. Co. The bonds pot There are decisions in the courts of other States, having been returned, and defendants having been inmore or less in conformity with those cited from Obio

formed that plaintiffs intended to sell them upon the and Kentucky, rejecting or limiting to a greater or

guaranty, verbally agreed that if plaintitfs would reless extent the master's exemption from liability to a

cover a judgment against the company, they would servant for the negligent conduct of his fellows. We

take an assigiment thereof, return to them the bonds agree with them in holding-and the present case re

and pay the costs. Plaintiffs in pursuance of the agree. quires no further decision--that the conductor of a railway train, wbo commands its movements, directs recovered and perfected judgment, and tendered a

ment, immediately brought suit against the company, when it shall start, at what stations it shall stop, at

written assignment thereof to plaintiffs, and demanded what speed it shall run, and has the general manage

a performance of the agreement, which was refused. ment of it, and control over tbe persons employed upon

In an action upon the agreement, held, that it was supit, represents the company, and therefore that for in ported by a sufficient consideration; that the performjuries resulting from his negligent acts the company is

ance hy plaintiffs of the acts upon which defendant's responsible. If such a conductor does not represent

promise was conditioned supplied the place of a prethe company, then the train is operated without any

vious promise to perform. The contract was not representative of its owner.

within the statute of frauds and was valid and biudIf now we apply these views of the relation of the

ing. The agreement was not collateral to any obligaconductor of a railway train to the company, and to the subordinates under him on the train, the objec- entered into by the defendants for their own benefit,

tion of the company, but was an original undertaking tions urged to the charge of the court will be readily

and for the purpose of settling the claim the plaintiff's disposed of. Its language in some sentences may be

had against them on their original guaranty, and obopen to verbal criticism; but its purport touching the

taining such indemnity as they could by a judgment liability of the company is, that the conductor and engineer, though both employees, were not fellow ser

against the company. Beckwith v. Brackett. Opinion

by Rapallo, J. vants in the sense in which that term is used in the de. cisions; that the former was the representative of the

[Decided Oct. 7, 1881.] company, standing in its place and stead in the running

SPECIFIC PERFORMANCE-PURCHASER OBJECTING TO of the train, and that the latter was in that particular

TITLE-DEFECTS IN RECORDS CURED BY PAROL.LA his subordinate, and tbat for the former's negligence, purchaser cannot justify his refusal to perform bis by which the latter was injured, the company was re

contract by a mere captious objection to the title tensponsible.

dered him; nor is it suflicient for him when the jurisIt was not disputed on the trial that the collision diction of an equity court is invoked to compel him to which caused the injury complained of was the result perform his contract

, merely to raise a doubt as to the of the negligence of the conductor of the freight train,

vendor's title. Before he can successfully resist perin failing to show to the engineer the order which he formance of his contract on the ground of defect of bad received, to stop the train at South Minneapolis title, there must be at least a reasonable doubt as to


the vendor's title-such as affects its value, and would common-law certiorari improperly issued in a case not interfere with its sale to a reasonable purchaser, and reviewable by certiorari is appealable to this court. It thus reuder the land unmarketable. A defect in the is claimed that order is not appealable and the case of record title may, under certain circumstances, furnish Jones v. People, 79 N. Y. 45, is referred to as an aua defense to the purchaser. But there is no inflexible thority to that effect. That case simply decides that rule that a vendor must furnish a perfect record or where a certiorari has been lawfully issued, it is dispaper title. It has frequently been held that defects iu | cretionary with the court whether or not to quash it. the record or paper title may be cured or removed by The question presented in that case was whether the parol evidence. Seymour v.Delancey,Hopk.ch.436; Mil Supreme Court might lawfully issue a certiorari to reler v. McComb, 26 Wend. 229; Fagen v. Davison,2 Duer, move an indictment into that court from the Court of 153; Brooklyn Park Com. v. Armstrong, 45 N. Y. 234; Oyer and Terminer, at the instance of the prosecution. Murray v. Harway, 56 id. 337 ; Shriver v. Shriver, 86 id. This court held that the Supreme Court had power to 575. In this action the records in the county clerk's issue the writ, and therefore it was within its discreoffice showed a deed of the lands to “ Electa Wilds," tion whether to quash it, or remand the case to the and a subsequent deed, executed in 1867, from “Electa Oyer and Terminer, or proceed to its disposition in the Wilder” to one S., which deeds were in plaintiff's Supreme Court, and that no appeal would lie from an claim of title; the defect alleged was that the records order denying a motion to quash. The case is not ab showed no conveyance from Electa Wilds. It appeared authority for the proposition that an order denying a that under the last deed, the title was held and the motion to quash a certiorari irregularly or improperly land occupied up to the trial of the action in 1881; that issued, in a case not reviewable on certiorari, is uot the deed to S. had been destroyed, but a mortgage appealable. In such a case this court might of its own given by him for purchase-money was produced, in motion direct the writ to be quashed. Such a writ which Electa Wilds was named as mortgagee. The lies only to inferior tribunals or officers exercising jucommissioner who took the acknowledgment to said dicial powers to correct errors of law affecting matedeed and S. both testified that the grantor was Electa rially the rights of parties. The fact that a public agent Wilds, and that said grantor and the grantee in the exercises judgment and discretion in the performance former deed was the same person. Held, that there of his duties does not make his action or powers juwas no defect in the title, and defendant was not justi-dicial in their character. People v. Walter, 68 N. Y. fied in refusiug to perform. Hellreige v. Manning. | 403. The board of commissioners of the department Opinion by Earl, J.

of public parks of the city of New York, claiming au[Decided Oct. 7, 1884.]

thority by statute, Laws 1871, $S 1, 3, ch. 534; ch. 613,

Laws 1873; $ 14, ch. 329, Laws 1874, consented to the BANK-TRANSFORMED FROM STATE INTO NATIONAL construction of an elevated bridge over the Harlem --RIGHT TO EN FORCE CONTRACTS.-Where under the river by the S. R. I. Co., and entered into a contract provisions of the National Banking Act, and under with that company for the building of the bridge at authority of the Act of 1865, ch. 97, a State bank is its expense under certain regulations and conditions. transformed into a National bank, it is but a continu- Held, that the proceedings of the board were not reance of the same body under a change of jurisdiction, viewable by certiorari, as if they had the power they and between it and those who have contracted with acted as public agents, and their action was not subit, it retains its .dentity and may, as a National bank, ject to review in that manner; if they had no power, enforce contracts made with it as a State bank. Where their consent was a nullity and affected the rights of therefore a State bank, at the time of its change to a

A writ of certiorari was directed to the board National bank, held a continuing guaranty of loans as such. Held, that as the board was a mere departmade by it to defendant's firm, upon the strength of ment of the city government (Laws 1873, ch. 335), and which it bad made loans, and after the chauge further no action could be brought against it by its official advances were made, held, that an action was main- name, the writ was irregular; it should have been ditainable by the National bank upon the guaranty, and rected to the members of the board by their names." that guarantor was liable for the loans made both be- Section 2129 of the Code of Civil Procedure provides fore and after the change. The general scheme of the that where the writ is brought "to review the deterNational Banking Act is that State banks may avail mination of a board or body other than a court, if an themselves of its privileges and subject themselves to action would lie against the board or body in its assoits liabilities, without abandoning their corporate ex- ciate or official nanie, it must be directed to the board istence, without any change in the organization, offi- or body by that name; otherwise it must be directed cers, stockholders, or property, and without interrup- to the members by their names." People ex rel. Sectiou of their pending business or contracts. All prop-ond Ave. R. Co. v. Board of Com. of Dept. Pub. Works. erty and rights which they hold before organizing as Opinion by Rapallo, J. National banks are continued to be vested in them

[Decided Oct. 7, 1884.) under their new status. Great inconveniences might result if this saving of their existing assets did not in

TRIAL-ISSUES IN EQUITY CASES-VERDICT OF JURY clude pending executory contracts, and peuding guar- MERELY ADVISORY-CODE, S 972, 1003-EVIDENCEantees, as well as vested rights of property. Although in form their property and rights as State banks pur- BOUND BY STATEMENTS THEREIN.–The provisions of port to be transferred to them in their new status of

the Code Civil Pro., SS 972,1003, providing for the deterNational banks, yet. in substance there is no actual mination of the other issues of fact in an equity case, transfer from one body to another, but a continuation where one or more specific questions have been subof the same body, under a changed jurisdiction. As mitted to a jury, and also for the review of the verbetween it and those who have contracted with it, it dict of the jury upon the questions submitted, does retains its identity, notwithstanding its acceptance of not change the old practice, and under the Code the the privilege of organizing under the National Banking verdict of the jury, although a motion for a new trial Act. City Nat. Bank of Poughkeepsie v. Phelps. Opin- has been denied, is not conclusive upon the court, and ion by Rapallo, J.

can only be read on the hearing with full power in the [Decided Oct. 7, 1884.]

court to follow or to reject as it may deem fit and

proper. It is only a part of the evidence, and if for any CERTIORARI-MOTION TO QUASI DENIED-ORDER reason it is deemed unauthorized, it can be rejected, APPEALABLE. --An order denying a motion to quash a and is not obligatory upon the court. The object of





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