quence of that interest, appears for the officer and assumes to defend him as his individual attorney or otherwise. The court still fails to get jurisdiction of the State. Where the officer is sued in his individual capacity and the State can not be made a party, I do not see upon what principle a judgment against the officer can be binding upon the State as a matter adjudicated between the State and the plaintiff. A matter can be res adjudicata only between the parties to the action and their privies. The case read by counsel for the plaintiff from sixteenth Wallace, giving a synopsis of what was determined in Osborn vs. The United States Bank, it seems to me indicates that there could be no valid judgment against the State. It is said by the court: "In deciding who are parties to the suit, the court will not look beyond the record. Making a State officer a party does not make the State a party, although her laws may have prompted his action, and the State may stand behind him as the real party in interest. A State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case. (Davis vs. Gray, 16 Wall. 220.)

"If in an action against a State officer in his individual capacity for a trespass committed under color of his office, the State can not be considered a party for the purpose of defending an action on the ground that the State can not be sued, it seems absurd to hold that the State is, nevertheless, a party for the purpose of having its rights conclusively determined by the judgment rendered.

"The case of landlord and tenant cited does not seem to me to be in point, because there the landlord is liable to be sued without his consent. If he appears and defends the suit it is his own act. He, substantially and voluntarily, becomes a party to the suit, and the court having jurisdiction of the subject matter and the party, by his voluntary assumption of the defense, is bound by the result. The State can not be made a party at all, without its consent, and the assumed appearance of the District Attorney or AttorneyGeneral without express authority of law does not constitute a consent. I do not think the provision in the statute of

Nevada (in regard to the duties of the Attorney-General) touches the question. It might be the duty of the AttorneyGeneral to appear and make the objection that the State can not be sued and even to conduct the defense for the benefit of the State. But it is a general law, such as exists in most if not all the States defining the duties of the Attorney-General, to appear and defend the interests of the State in those cases where the State may be sued. And it may be desirable that he should appear and defend officers of the State, or even others where the interests of the State may be affected, although the decision against the parties to an action might not be an adjudication conclusive upon the rights of the State. It may be a short, easy, and, if successful, convenient way of protecting the State's interest, and, as such, a proper course for him to pursue. However this may be, it is clear that this section of the statute does not in terms, or by any reasonable implication, authorize private parties to sue the State; and we have seen from the authorities cited, that where there is no authority of law for suing the State, an assumed authority of an attorney of the State to appear does not confer jurisdiction over the State. A fortiori, his assuming to appear unofficially for the defendants in defense of actions brought against private parties in their individual capacities who happen to be officers of the State, and to which the State is not and can not be made a party, can not confer jurisdiction to conclusively determine the rights of the State as against the State. If such could be the effect of the judgment, it must be on the ground that the State can indirectly in substance and fact be made a party when the law forbids her being made a party in form; and her rights may be determined in a case over which she has no control, for the defendants must have authority to control their own defenses even if the defense is conducted by the attorney of the State.

"Under the view I take of the case, this is not an adjudication binding upon the State, and as the State is not concluded, I do not see how the present officers can be in privity with the prior Warden, or how the State can be in privity with him. They took nothing from him and the State got nothing from him. The rights of the State upon which the

defendants rely depend upon its own title, not derived from Slingerland, the former Warden. In my judgment the record is of no effect and inadmissible.

"If plaintiffs have a title they ought to recover their land. The point which they make is that the State is estopped from showing that they have not any title. They will be permitted to show their title if they have any. I will say to counsel that my associate, the District Judge, does not concur in the views I have expressed. There is a division in opinion between us. But as the law now stands, the opinion of the Presiding Judge prevails for the time being."

The very elaborate opinion in Lee vs. Kaufman, recently decided by Judge Hughes, cited by plaintiffs' counsel on the present trial; only goes to the question of jurisdiction over actions against officers, and does not in my judgment touch the question of the effect of this judgment. (24 Int. Rev. R. 90.) For the purpose of this decision I assume that the court had jurisdiction of the action against Slingerland individually, without discussing the point or formally deciding it. There must be a judgment for defendants with costs, and it is so ordered.

R. S. Mesick, for plaintiff.

J. R. Kittrell and R. M. Clarke, for defendants.

Superior Court, New York City.

JUNE, 1878.

CROGAN vs. NEW YORK AND HARLEM R. R. CO. CARRIERS OF PASSENGERS NOT INSURERS.-A carrier of passengers is not bound to guard against accidents which are caused by defects that can be discovered only by superhuman sagacity. Accordingly, where a narrow strip of board in a car platform, perfectly sound and of the strength usual in such boards, was found insufficient to withstand a forcible pressure of the crutch of a passenger. Held: that the company owning such a car was not negligent, or liable for an accident caused thereby.

The plaintiff, whose complaint was dismissed at the trial, moves upon the minutes that a new trial be granted, on the

ground that the judgment there rendered was against the evidence and contrary to law. [The plaintiff, weighing about 280 pounds, in alighting from defendant's car at Fourth Avenue and Thirteenth Street, forced the ferule of her crutch through one of the slats of the car platform, and claimed to have received a wrench or partial fall by which she sustained injuries.]

Homer A. Nelson and R. Garretson, for plaintiff.

Elliott F. Shepard, for defendant.

SANFORD, J. The plaintiff's motion for new trial is pressed with earnestness, on the ground that the ruling of the court in dismissing her complaint was in conflict with the views expressed and the principles established in the case of Weston vs. The New York Elevated R. R. Co., recently affirmed by the Court of Appeals. (17 Alb. Law Jour. 415.) That case went up on appeal from a judgment of this court (42 N. Y. Superior Ct. Rep. 156), and the opinion of the General Term, which is supposed to be in conflict with the rule adopted in the present case, was prepared by myself and was not overlooked when the nonsuit was ordered. I am still of the opinion that railway passengers, proceeding with ordinary care, over platforms and through passages leading to and from their seats in the cars, have the right to expect and to assume that they may do so without risk of injury to life or limb from unsubstantial, insecure, or treacherous footholds; and that carriers of such passengers, for hire, are responsible for something more than mere ordinary diligence in keeping their platforms in a safe and proper condition for the entrance and egress of passengers into and out of their cars. They are bound to use all such reasonable precautions against injury as human sagacity and foresight can suggest. The difficulty with the present case is that upon the evidence nothing short of superhuman prevision could have discovered the insecurity of the platform through which the plaintiff's crutch penetrated when she attempted to dismount from the car. The evidence shows, without contradiction, that reasonable and proper precautions were taken by the defendants to prevent such accidents. The platform which

broke was previously inspected by competent persons on the very day of the accident, and was found to be in apparently good condition. It was constructed in the same manner and with the same materials as other similar platforms on other cars of defendants and on cars of other companies running street railroads in the city of New York. The wood of the broken strip, as well as that of the strips adjacent, was afterward found to be sound and undecayed. The platform had proved in the previous experience of the defendants to be safe, suitable, and proper for the purposes to which it was, and was intended to be, ordinarily applied, and the presumption of negligence arising from the sudden fracture of one of the narrow strips composing it under the impact of a violent, concentrated, and altogether extraordinary concussion, if any such presumption be warrantable, is amply rebutted by the positive and uncontroverted testimony showing that due care and proper precautions were taken in providing a safe, suitable, and proper foothold. The accumulation of snow and ice upon the platforms of the Elevated Railroad Company (Weston vs. N. Y. Elevated R. R. Co., ubi sup.) could readily have been discovered and prevented by the exercise of merely human prudence and caution, and the danger of permitting such an accumulation to remain was patent and obvious, but it is not easy to perceive how the defendants' agents could have ascertained the insufficiency of the platform or of a particular strip in it to resist an assault so violent and unexpected without resorting to the very experiment, or its equivalent, under and by means of which that insufficiency was practically attested by the plaintiff. To charge the defendants with responsibility for not preventing an accident so entirely beyond the reach of a watchful scrutiny would unduly extend the liability which the law has imposed upon carriers of passengers, and would make it commensurate with that of insurers.

I am of opinion that a verdict in favor of the plaintiff could not have been sustained, and that the complaint was properly dismissed.

Motion for new trial denied, with $10 costs.