Henry H. Anderson and Wm. H. Hornblower, for the motion. John E. Parsons, opposed.

Held, That the reports of the commissioners were sufficiently definite to enable the company to secure as intelligent a review of the proceedings and determination of the commissioners as may ordinarily be afforded in proceedings of this description.

That no irregularity appeared to have intervened in any form in what had taken place before the commissioners, and where that is the case the order of confirmation follows upon the presentation of the report of the commissioners as a matter of course. 64 N. Y., 60; 17, chap. 140, Laws 1850; 10 How., 168, 175.

That the railroad company had not, by its notice, specially asked for such an order, but that under the clause of the notice by which such other or further relief has been applied for as to the court might seem just, relief may be awarded to such an extent as is warranted by the facts plainly appearing in the papers on both sides. 45 N. Y., 468, 476. And that order was plainly warranted by the facts appearing before the court.

That the legal and appropriate method of reviewing and considering the effect of the evidence and the proceedings of the commissioners depending upon it and involving the merits is by the appeal provided by 18 of the act, to which the confirmation of the report seems to be a precedent circumstance and which is not preju

diced in any respect by such confirmation.

Ordered accordingly.

Opinions by Daniels, J., and Davis, P.J.; Brady, J., concurs.

ATTACHMENT. BANKS.

N. Y. COURT OF APPEALS. Gibson et al., respts., v. The Nat'l Park Bank, applt.

Decided Jan. 20, 1885.

Defendant, with knowledge that a railroad company which was a depositor was embarrassed, and that attachments were being issued against it, certified a check of the company for the balance of its deposit, payable to R., its assistant treasurer. An attachment against the company was served on the bank, and thereafter R. deposited the check to his individual account and drew out the proceeds. Held, sufficient to sustain a finding that defendant had reason to and did believe when the deposit was made that it was the property of the company; that it was the duty of defendant upon being served with the attachment to take immediate steps to impound the fund in its hands, and prevent payment by any of its agents except to a bona fide holder of its obligations.

The service of the attachment did not create a lien on the moneys deposited. Where the clerk of the deputy signs the certificate under directions from the latter, his act is to all intents and purposes the act of the deputy, and valid. Where there has been a substitution of parties plaintiff upon the death of one, proof of the facts showing a right to substitute is not necessary upon the trial.

This action was brought to recover an amount claimed to be due the N. O., St. L. & C. RR. Co., upon a deposit account, from the defendant, the National National Park Bank. Plaintiffs claimed to have attached this amount in an action

brought by B., one of the original plaintiffs. It appeared that on April 27, 1875, the Nat. Park Bank had on deposit to the credit of said RR. Co. $6,600, and, at the request of one R., its assistant treasurer and financial agent in New York, and the person who made its deposits, said bank certified a check of said RR. Co. for $6,600, which was signed by R. as assistant treasurer, and was payable to his order. On April 30, 1875, an attachment was levied upon the deposits of said RR. Co. Subsequently, but on the same day, R., upon being informed of said levy, asked to be allowed to open a deposit account in his own name, and upon his request being granted, he deposited said $6,600 check and two other checks or drafts, which belonged to said RR. Co., and were payable to him as assistant treasurer and indorsed by him as such. These securities, amounting in the aggregate to $55,000, were credited to R. individually, and were paid out on his checks drawn to pay debts of said RR. Co.

It appeared that before the $6,600 check was certified by defendant it knew that the RR. Co. was pecuniarily embarrassed, and that an attachment had already been levied upon its deposits. It also appeared that defendant was aware that other attachments were anticipated, and that defendant had become a party to a scheme by which the funds of the RR. Co. were to be so kept as not to be liable to attachment at the suit of creditors, and that defendant knew that it was the intention of the

RR. Co. to impede its creditors in reaching its deposits.

George H. Adams, for respts.
Francis C. Barlow, for applt.

Held, That the evidence was sufficient to support the finding that defendant had reason to and did believe, when the deposits were made, that they were the property of the RR. Co. The fact that the securities deposited were payable to R., as assistant treasurer of the RR. Co., was notice to everybody into whose hands they might come that the funds represented by them were the property of the RR. Co. and that R. held them in a fiduciary capacity. 91 N. Y., 324; 100 Mass., 389; 5 Wend., 572; 26 How. Pr., 270.

Also held, That when defendant's officers had notice of the service of the attachment it was its duty to take immediate steps to impound the funds in its hands and prevent their payment by any of its agents except to a bona fide holder of its obligations. It cannot shield itself from liability by alleging the ignorance of the agent making the payment.

Plaintiffs claimed that the service of the attachment gave them a lien upon the moneys deposited, if they were in fact the moneys of the attachment debtor, although they were deposited in the individual name of R.

Held, Untenable; that the deposit created no debt from the bank to the attachment debtor which the latter could enforce against the bank; that by the voluntary consent of the owners of the fund deposited the credit in question was

given to R., and the bank thereby became liable to pay the amount to him and to him alone. It was competent for the parties to give such form to the transaction as they desired, subject only to the right of creditors in a proper action to impeach the validity of the contract. Even if the deposit was made for the express purpose of defeating creditors of the RR. Co., the legal title to the debt was in R., and any equitable right existing in favor of the creditors against the RR. Co. could only be enforced through an action in equity, to which R. and the RR. Co. would be necessary parties. 15 N. Y.,

334.

It appeared that while the certificate served upon defendant by the deputy sheriff purported to be signed both by the sheriff and the deputy, it had in fact been signed by the clerk of the deputy, under directions from the latter.

Held, That the deputy having adopted the act of his clerk in signing the process, it was to all intents and purposes his act, and he would thereafter be estopped from controverting the validity of the signatures. As the act of the clerk was merely mechanical and

comes by that circumstance the knowledge of all of its agents when acting in an official capacity. 96 N. Y., 550; 2 Hill, 451.

The debtor of a defaulting creditor, whose liability is sought to be attached against such creditor, has an active duty to perform, imposed upon him by the legal attachment of such debts, and cannot escape liability when by inaction he allows the attached fund to be removed from his possession.

It appeared that an order was made in this action substituting one C. as plaintiff in the place of one of the original plaintiffs who had died. No proof was given on the trial of the death of the original plaintiff or the right of C. to be substituted. It is now claimed that such proof is necessary.

Held, Untenable; as such facts were adjudicated when the order of substitution was made. 94 N. Y., 519.

Judgment of General Term, affirming judgment for plaintiffs, affirmed.

Opinion by Ruger, Ch. J. All concur.

NEGLIGENCE. RAILROADS.

be lawfully delegated. 3 N. Y., 396; 6 id., 432.

Knowledge, or notice of a fact legitimately communicated to any of the officers of a bank while acting in his capacity as an agent of the bank becomes the knowledge of the bank, and knowledge or notice communicated to the principal which imposes a duty upon it be

TERM.

Ruppel, respt., v. The Manhattan R. Co., applt.

Decided Nov. 14, 1884.

Where action is brought to recover damages from a fire caused by sparks from defendant's locomotive, it is sufficient to make a prima facie case of negligence to show that at the time of the accident the engine emitted a large and unusual quantity of sparks.

Appeal from judgment in favor of plaintiff and from order denying motion for new trial.

The action was for damages for a fire caused by sparks from one of defendant's locomotives. The evidence as to the origin of the fire was as follows:

"I was coming along Third avenue, when my attention was attracted by the puffing of an engine, and the smoke and a volume of sparks arising from the smoke stack. I watched it very closely as it lit upon the awning. I saw a little smoke arising, and all of a sudden it blazed, so I ran right into the store and hallooed to Mr. Ruppel. It was quite a quantity of sparks that arose from the smoke stack. The sparks were unusual in degree, to the best of my knowledge. I am on Third avenue almost every day, from Sfventyfifth street to One Hundred and Twenty-fifth street. I am very careful when I see sparks falling out of the smoke stack. It is not uncommon for smoke to escape from the smoke stack. Fire also often escapes by the puffing of the engine starting so that it causes more fire, and it throws up more of these sparks. I noticed the sparks in large volume at the time she was coming. When the sparks were emitted the smoke stack was not more than twenty-five or thirty feet from Ruppel's restaurant. My attention was first attracted by the sparks. The sparks were red. It was about one o'clock in the afternoon. I cannot say that I ever saw so large a quantity of sparks on any other occasion. I might

have seen them emit a larger quantity of sparks on one or two other occasions. I suppose I have seen locomotives emit sparks on three or four different occasions altogether, before Ruppel's awning was burned. I have seen locomotives a great many times when no sparks were emitted. In the day time you could not notice the red light in such volume, but in the night time it can be seen very plain. What attracted my attention on this occasion was the red sparks blazing from the smoke stack. It was the quantity of sparks that attracted me, as naturally it would. At night I have noticed red sparks on other occasions, but not in the day time."

The sole question brought up by this appeal is, was this evidence sufficient to make out a prima facie case of negligence against the defendant?

R. C. Deyo, for applt.
R. Bonynge, for respt.

Held, That though the evidence for the plaintiff is far from conclusive, yet it cannot be said that there is no evidence at all of negligence. We cannot determine in what it consisted-whether in the defective condition of the engine or in the careless management of the engineer; but the jury was warranted in finding that the emission of a volume of live sparks, unusual in quantity and of so brilliant a color that their brightness did not pale before the rays of the midday sun, was so much out of the ordinary course of events that it must have been caused by some force that is seldom in operation.

Our experience and observation teach us that locomotives can be and are constantly operated without setting fire to adjacent property, and when any extraordinary display of sparks is made at the time an engine starts a fire, a jury may, in the absence of all explanation, conclude that there was something wrong with the engine or with the engineer. 32 N. Y., 349; 44 id., 369; 13 Hun, 257; 8 ib., 599; 1 Addison's Torts, 307, n. (Dudley & Baylies' ed.); 59 Barb.,

TERM. FIRST DEPT. Charles L. Reason, personally and as principal of Ward School No. 80, etc., applt., v. The Board of Education of the City of N. Y. et al., respts.

Decided March 4, 1885.

Chap. 248, Laws of 1884, continuing the colored schools then existing in the City of N. Y., does not prohibit the proper officers from changing the location of one of such schools if such change is for the

benefit of the school; but it does prohibit

any change which would affect the capacity of the school to receive its pupils, or would degrade the school or destroy its usefulness.

Appeal from an order vacating a temporary injunction.

This action was brought under Chap. 248, Laws of 1884, continuing the colored schools then exist

ing in the City of N. Y., to restrain the defendants from changing the location of Ward School No. 80 from 41st street to a building on 42d street, which, it was claimed, would be a degradation of the school and to its disadvantage.

A preliminary injunction was obtained by plaintiff, but the motion to continue it was denied and the injunction vacated, and from the order vacating it plaintiff appealed. Upon the argument of such motion plaintiff claimed the right or privilege of answering certain affidavits read in opposition, which was denied, and plaintiff, therefore, procured an order to show cause, returnable before the General Term upon the argument of the appeal, why, if the order appealed from should not be reversed, it should not be sent back to the Special Term for a further hearing upon the merits. The affidavit upon which this order to show cause was obtained contained allegations that the building to which it was proposed to remove the school was not of sufficient capacity to accommodate the scholars.

On the argument of the appeal it was claimed by plaintiff that defendants had no power, under Chap. 248, Laws of 1884, to make the change in the location of the school contemplated.

Nelson J. Waterbury, for applt.
D. J. Dean, for respts.

Held, That the proposition that the act of 1884, supra, by which the school was continued, means in the precise locality in which it was situate at the time of the passage