Third Department, November, 1911. [Vol. 147. millions of stock, but I did not know the exact amount until I saw the advertisement. I knew that the putting through of that transaction ought to involve the supervision of counsel at practically every step. I do not think I made any investigation of the details of the transaction before I went away. I had no conversation with either of the members of the firm of Ward, Hayden & Satterlee with respect to overseeing the legal side of the transaction." On July twelfth, just before sailing, he wrote Dresser: "Let me again congratulate you on the splendid success you are making. You have already exceeded the confident expectations of your friends and have made a record for the Company that I believe is unique. My only word of caution would be to go slow' and take it as easily as possible during the summer and not overwork yourself, as we ought to have a very busy and prosperous winter ahead of us." From his testimony it does not appear that he had much knowledge of the affairs of the company, and it does not indicate that he knew of anything which would justify him in characterizing the success of the company as unique except the large benefit it expected from this underwriting. He admits that Dresser stated at an executive committee meeting that the company would receive its compensation within the month and it would go into the next report. If none of the committee knew what compensation the company was to receive it is strange that inquiry was not then made. The company had not otherwise earned anything; its service as banker had not begun. It is not contended that under ordinary circumstances a director or a member of an executive committee of a trust company who is absent from meetings for a reasonable time. upon his own business or pleasure is liable on account of transactions which took place in his absence and of which he had no notice. By becoming such officer a person does not undertake to devote his whole time to the company. The members of the executive committee received ten dollars for each meeting, and necessarily it was expected that they were at liberty to devote their time to their ordinary business and pursuits, giv ing to the trust company just such time as was reasonably necessary under the circumstances to protect its interests. When the defendant Satterlee left New York on his vacation App. Div.] Third Department, November, 1911. July sixteenth to return September twenty-ninth he knew that two of the members of the executive committee were practically of no use; that the other members were exercising very little supervision and taking but little interest in the matters and that they were practically permitting Dresser to carry on the business in his own way; that the company was involved in the shipbuilding underwriting and had gone so far with reference to it that a failure of the plan meant practical disaster. It was too late to leave without obtaining a thorough and accurate knowledge of the circumstances and details of the underwriting and taking some precautionary measures against contingencies. He had made no inquiry and had no knowledge as to the Paris underwriting or as to the American underwriting and had no information of the trustworthiness of any of the subscriptions. The trouble came to the company from the fact that Dresser received his information from the hearsay of parties whose interests were opposed to his, and that the executive committee made no inquiry and sought no information with reference to the plan or its execution, but was content with the hearsay from Dresser to the extent which he chose to communicate. It is not necessary to say that the participation of the trust company in this underwriting was illegal. (Gause v. Commonwealth Trust Co., 196 N. Y. 134, supra.) It is enough to say that under the circumstances it was reckless. The defendant was negligent while here and negligent in leaving while the affairs of the company, by reason of its reckless management, were in such a serious condition. It is unnecessary to inquire whether Dresser and the directors and executive committee who acted in part with him during Satterlee's absence, took a wise or unwise course to relieve the company from the emergency in which it had previously been placed. He evidently did what he thought best; many of his acts were illegal and unauthorized, but it was represented to him that there was simply a delay in the money from Paris and he felt that the expedients which he adopted were mere makeshifts to tide over a few days. The persons who negligently permitted the trust company to get involved in this matter under the circumstances are hardly in a position to Third Department, November, 1911. [Vol. 147. complain because Dresser acted unwisely or illegally, or to deny that their negligence makes them civilly responsible for such acts. The defendant Gould agreed to be and was a dummy director. If the others had followed his example Dresser would have been the board of directors and the executive committee. Gould left everything to his discretion and judgment and is fairly responsible for it. It is immaterial in each particular transaction to consider whether the directors and members of the executive committee knew what was being done by the company or whether their fault lay in not knowing. The method in which the executive committee permitted the business to be carried on by Dresser evidently led the officers and employees of the company to understand that Dresser was in fact the executive committee and that he was unrestrained in doing what he thought ought to be done. About September twenty-fifth Dresser deemed it necessary to go to Paris to try and realize upon the underwriting there, and just before he departed he took from the company, with the consent of the vice-president and the clerk who had charge of issuing checks, $35,000. Their acts can only be explained upon the supposition that they felt it was money taken to be used in the company's business with reference to the Paris underwriting. Apparently it was not so used. When he arrived at Paris he did not find any substantial underwriting there, and the alleged Paris underwriting did not justify any expenditure. This money was never repaid to the company and is one of the items of damages which have been allowed against the defendants. In my judgment it was properly allowed. When Dresser was obtaining the part of the so-called London underwriting which fell to him, the day when the underwriting must be closed was at hand and the subscriptions not entirely taken, and he called upon members of the executive committee to assist him. One of the last subscriptions obtained was that of Bruckman, who later gave his notes for a part of his underwriting, secured by the underwriting agreement or the bonds called for by it. After the syndicate had relieved App. Div.] Third Department, November, 1911. the company Bruckman refused to pay his notes, claiming that he had been deceived. An adjustment was made after Gould had resigned as a director and Satterlee as a director and member of the executive committee. The agreement of adjustment recited: "Said Bruckman agreed to underwrite and purchase said securities subject to a loan of One hundred and forty-nine thousand Two hundred dollars ($149,200), with interest at five per cent per annum, for the repayment of which loan he was not to become personally liable, the said Trust Company looking to the securities only for eventual payment." The trust company then accepted the bonds and relieved him from liability upon his notes. Satterlee was attorney for the company in making the adjustment and approved of and advised the execution of this agreement. We cannot assume that the recital was false. It related to the terms of a subscription taken by the company while he was a member of its executive committee. It is, therefore, some evidence against him that the Bruckman note never had any validity and that the company was negligent in advancing money upon it. Bruckman all the while was financially responsible, and aside from this recital in the agreement there is no evidence giving any good reason why his note was not collectible. This recital is not evidence against the defendant Gould. With reference to the other notes which have been treated as an element of damage, while the makers were discharged, there is no evidence tending to show that there was any valid reason therefor. These conclusions lead to the result that the judgment should be modified as to the defendant Gould by striking out all damages except with reference to the $35,000 item, and as to the defendant Satterlee by striking out all damages except those relating to the $35,000 item and the Bruckman notes, and as so modified affirmed, without costs. Judgment reversed on law and facts, new trial granted, with costs to each appellant to abide event of the action. Third Department, November, 1911. [Vol. 147. ONTARIO KNITTING COMPANY, Appellant, v. THE STATE OF NEW YORK, Respondent. Third Department, November 15, 1911. Eminent domain - public use - power of court for barge canal condemnation of land powers of State Engineer when appropriating land - condemnation of land not necessary to construction of canal change of plans - approval of Superintendent of Public Works necessary authority of public officer-claimant chargeable with knowledge of law. Where the original map of the barge canal as made by the State Engineer did not appropriate certain adjoining lands, the State Engineer had no authority subsequently to alter the map so as to appropriate the lands without the approval of the Superintendent of Public Works, as required by section 6 of the Barge Canal Act, nor without the consent of the Canal Board, where the change enhanced the cost to the State. The owner of lands appropriated by the change of plan, being chargeable with knowledge of the law, was bound to know that no change in the maps could be made so as to appropriate his land without the consent of the Superintendent of Public Works. Whoever deals with a public officer is chargeable with knowledge of his powers. (Per KELLOGG and SEWELL, JJ.): Where lands are to be taken by eminent domain, the court may determine whether or no the use for which they are taken is a public use. Although the Barge Canal Act authorizes the State Engineer to appropriate lands for the use of the improved canals and for the purpose of construction, and to make a map of the lands to be appropriated to be filed with the Superintendent of Public Works, a determination made in good faith as to the necessity for the appropriation of lands, and the exercise of a sound discretion, are conditions precedent to his right to condemn. It seems, that where there is a reasonable basis for the determination of the State Engineer in condemning lands for the construction of the barge canal, the courts will not assert their own judgment as to the necessity for the condemnation against that of the State Engineer. Appeal from a judgment of the Court of Claims in an action against the State brought by a mill owner to recover damages alleged to have been suffered by reason of loss of business, etc., owing to the fact that a special Deputy State Engineer filed a map permanently appropriating the claimant's lands for canal uses, which appropriation was made without the approval of the Canal Board or Superintendent of Public Works. Evidence examined, and held, that the claimant's property |