The opinion
O’BRIEN, J.
(dissenting). It is conceded that the evidence excluded was admissible, provided the acts and declarations of the inspector were binding on the defendant, and it is upon this latter point that I dissent from the conclusion reached by the majority of the court. The relation of Mr. Kaufman to the defendant corporation he himself stated to be as follows:
“I am employed by the Metropolitan Street-Railway Company as an investigator, under Mr. Julian. He is my superior. * * * My duties as investigator are to see the witnesses, and take statements, and interview witnesses. Q. And interview those who expect to be witnesses at a trial against the Metropolitan Street-Railway Company? A. Those who expect, and those who are. And I have been acting as an investigator in this case for the Metropolitan Street-Railway Company.”
The corporation, therefore, conferred upon Mr. Kaufman the right and authority to investigate accidents, to interview and interrogate witnesses, and to attend to the preparation of the testimony to be adduced by the defendant on the trial of such cases as he was instructed to look after. Although he states that he had a superior officer in his department, no suggestion is made that his own authority was in any way thereby limited. Matters connected with witnesses, therefore, were specially confided to him, and he was left to exercise his own discretion and judgment as to the manner in which he should perform the duty; his authority being in no wise, so far as appears, limited or restricted by the defendant or by the person immediately above him in his department. The question, therefore, is whether the acts and declarations of such an agent are_ binding on the raifroad company. As a corporation is incapable of acting itself, and can do so only through agents, the rule is settled that the acts and declarations of the agent, within the scope of his authority, are, as to third persons, binding on the corporation. As said in Anderson v. Railroad Co., 54 N. Y. 339 :
“The principal constitutes the agent his representative in the transaction of certain business. Whatever, therefore, the agent does in the lawful prosecution of that business is the act of the principal whom he represents; and, when the acts of the agent will bind the principal, his declarations respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestee.”
To assert that because the inspector had nothing to do with the car which caused the injury, nor any duty concerning it, the evidence offered was not competent, because it did not bear upon the main fact to be proved at the trial, namely, that the defendant was negligent, seems to me to beg the question here at issue; for it is conceded that the evidence sought to be introduced is an exception to the general rule that collateral facts cannot be proved. The dec *538 laration attempted to be shown, which, was in the nature of an admission, was a collateral fact; and, if competent only because it had a direct bearing upon the question of the defendant’s negligence, such a declaration never would be admissible. It is conceded, how'ever, that the declaration here was admissible if made by an agent within the scope of his authority; and it is only this latter point ■that it was necessary to establish, to render the testimony competent. If the acts of this agent, clothed, as he was, with authority to look after witnesses, are not binding upon the defendant, then it is difficult to conceive how the corporation could ever be bound by ■anything short of a meeting of the entire board of directors, and the passing by them of an express resolution conferring authority upon some particular officer or person to do each specific act which might arise in Ms employment. Such a limitation upon the power of the •agents of a corporation, if extended to all corporate transactions, would not only hamper the corporation itself, hut would make it exceedingly dangerous for any one to have dealings with its officers or agents, unless the person dealing with them first ascertained that they had express authority, by resolution of the board of directors, to transact every detail of the business committed to them. If the principle is applicable to one detail, it is equally applicable to every other. The inspector in the course of his employment went to the witness, and I tMnk the defendant is bound by Ms acts and declarations at that time, which were here sought to be proved, if the principle in the cases cited in the prevailing opinion is here applied. The rule underlying them all is, as stated in Anderson v. Railroad Co., 54 N. Y. 339 , that “the declarations of an agent wMch are part 'of any res gesta? wMch is the subject Of inquiry are receivable against the principal.” The principal is not bound whére, as in Thallhimer v. Brinckerhoff, 4 Wend. 394 , the agent’s act is done after the transaction is completed; but, as therein stated, “what was done and :said at the settlement, or when the moneys were actually paid over, might well be proved.”
Having concluded that the evidence sought to be adduced was competent and relevant, and, as here appear^, material, in view of the evenly-balanced state of the testimony, I think that the error in excluding it was substantial, and therefore that the judgment should be reversed, and a new trial ordered.