been vested by the statute in the petitioners to create conditions by the terms of their petition, and without the aid of the statute it seems they had no such power. Craig v. Town of Andes, 93 N. Y. 405. The conditions inserted in the petition were so far controlling that the commissioners could make no contract with the company inconsistent with them. Falconer v. Railroad Co., 69 N. Y. 491. But the fact that the first petition in question did contain the provision that $5,000 of the bonds be issued when the road was located through the town, did not, we think, deny to the commissioners the power, by contract with the company, to postpone their issue or delivery to a later stage in the progress of the work. That provision was evidently designed to prescribe a time before which that amount of bonds should not be issued, rather than a direction for their issue at that time; and the postponement was in the apparent interest of the town, to have further assurance that the railroad would be constructed, which was the sole inducement and purpose of the proceeding instituted by the petition.

There is, however, a more serious difficulty, having relation to the effect upon the contracts of the last provision of the first petition, that the remaining $10,000 of bonds were to be issued when the road should be completed; assuming that such completion be construed to embrace the entire line of the road, and that such line extended from Jamestown to the state of Pennsylvania. The articles of association of the railroad company do not appear in the case; but it seems to have been alleged in the complaint, and not denied by the answer, that the Buffalo & Jamestown Railroad Company was incorporated for the purpose of constructing a railroad from Buffalo to the Pennsylvania state line. The road was constructed from Buffalo to Jamestown, and no further. The distance from the latter place to the state line is 12 to 15 miles. The trial court treated the road as completed; and it may be that the purpose in view of the petitioners, by the expression before mentioned of the petition, was that the last issue of bonds could be made when the road was completed through the town, although it does not seem to so appear. This clause is part of the following provision of the petition, viz.. And it is required that said commissioners issue said bonds upon the express condition that said railroad shall be constructed through said town of Cherry Creek, and to be issued in amounts as follows: Five thousand dollars when said road is located through said town, ten thousand dollars when said road is graded through said town, and the remaining ten thousand when said road is completed." The question now under consideration is whether the contracts of August, 1872 and 1874, were valid in respect to the time stipulated by them to deliver the bonds to the company. That the road was completed about the 1st of April, 1875, within the meaning of this provision of the petition, seems to have been assumed by the trial court, and apparently is by the defendant's counsel; and there was evidence upon the trial to the effect that the road was then completed. The adoption of this view, assuming that when the contracts were made it was contemplated by the parties to them that the performance by the company of the work of construction required by their terms would have the effect to consummate the completion of the road, may relieve the provisions of the first petition and the contracts from apparent conflict. The contracts in that respect were in harmony with the second petition. Then the first petition also provided that the bonds should be issued, and they or their proceeds invested in the stock of the company, upon such terms and conditions as should be agreed upon between the railroad company and the commissioners. While this provision of the petition is substantially like the power given by statute to the commissioners in that respect, and may be treated as part of the conditions of the petition within the power also conferred by statute upon the petitioners, it must be deemed subordinate to the well-defined terms of the petition upon the subject of issuing the bonds; and although the question may be one of some difficulty, and not free from doubt,

we are inclined to think that the contracts are not invalidated by repugnancy between them and the terms of the first petition.

It is, however, urged by the learned counsel for the plaintiff that these contracts come within the doctrine of Falconer v. Railroad Co., 69 N. Y. 491, 103 U. S. 821, and therefore cannot save the bonds from the invalidating effect of such amendment of the constitution. In that case the condition upon which the commissioners were authorized by the petition to issue bonds, and invest them or their proceeds in the stock of the railroad company, was that the road should be located and constructed through the village of Jamestown, and that before that event the bonds should not be delivered to the company or sold. And by the contract then made the commissioners agreed with the company that, when the road should be located and constructed through said village, they would subscribe for the stock of the company, and deliver to it the bonds, and the company agreed to accept such subscription and the bonds in payment for the stock. And in the contract reference is made to the petition and proceedings upon it, and it is declared that the commissioners did not agree to perform the conditions of the contract except as they were "empowered and authorized so to do by said petition and proceeding, and the statute in such case made and provided." Afterwards, and in 1874, the commissioners issued the bonds, and placed them in the custody of two persons, and at the same time delivered to those persons their written statement to the effect that, if the company should on or before January, 1876, have constructed the railroad through the village of Jamestown, and delivered the certificate of stock upon the subscription thereto by the commissioners, the bonds should be delivered to the company; otherwise be returned to the commissioners. The contract was held ineffectual, because the condition in the petition denied to the commissioners the power to subscribe for the stock of the company, or to issue the bonds, until the road was constructed through the village of Jamestown; and by the contract the commissioners undertook to do no more than the terms of the petition provided for, and the railroad company agreed to do nothing which it was not required to perform, to entitle it to the bonds as provided by the condition of the petition; and that it did "not in terms bind the company to comply with the condition which the tax-payers had affixed to their consent or petition, though the acceptance of a subscription limited by a condition would hold the company to an observance thereof." The situation represented by the petition and contract there, although in some respects similar to those in the case at bar, are distinguished from the latter, in that in the former the condition of the petition in terms denied to the commissioners the power to subscribe to the stock of the company until the road should be constructed through the village of Jamestown, and until then no bonds were issuable; while here the petition expressed no denial of power to so subscribe, and did provide for the issue of $5,000 of the bonds when the road should be located through the town. And by the contracts the delivery of the first installment of bonds was postponed, and the commissioners undertook and did subscribe to the stock of the company, which was accepted by the latter, and the certificate of the stock and the bonds were deposited in escrow to effectuate the agreement so made. The distinction between the Falconer Case and that of County of Moultrie v. Bank, 92 U. S. 631, to some extent disappears in its application to the case at bar. In the case last cited the board of supervisors of Moultrie county were by statute authorized to subscribe to the capital stock of a railroad company to a certain amount, and to issue bonds of the county therefor, provided that the bonds should not be issued until the road should be open for traffic between certain points mentioned. The board of supervisors, in 1869, undertook to subscribe to the stock, which was accepted by the company, and it, by contract, appropriated the bonds which it would receive; and in 1873 the road was opened to traffic between such points, and the bonds were delivered to the company, but because the constitution of

the state of Illinois was so amended in July, 1870, as to prohibit the loaning of the credit or money of any county to or in aid of a railroad company, or the subscription by a county to the stock of any such company, the question was presented whether the liability of the county was created by the issue of the bonds subsequently to the adoption of such constitutional provision. And it was held that there was a contract existing at that time which supported the issue of the bonds, and the liability of the county upon them. And this was put upon the ground that while the statute prohibited the isssue of the bonds until a specified event, which did not occur until after the prohibitory provision was inserted in the constitution, such limitation of power was not applicable to the subscription to the stock of the company. It is not seen how the further provision of such constitutional amendment, that all rights, claims, and contracts should continue to be valid, has any importance upon the question in that case, or the case under consideration. There is, however, between that case and this one, the difference arising from the fact that in the Moultrie Case the undertaking to subscribe for the stock was unqualified, while here it was so qualified that, in the event the company failed to comply with the requirement imposed, the certificate of the stock should be returned to it. But the company had the undertaking of the commissioners that the subscription made to the stock should be effectual, and it be entitled to the bonds in case of performance on its part. On the review of the Falconer se in the United States court it was distinguished from the Moultrie Case by the fact that the commissioners had not only not subscribed to the stock of the company, but by the terms of the petition they had no power to do so until the road was constructed through Jamestown. That is not so in the case at bar. The petition does not in terms qualify the power of the commissioners to so subscribe, nor does it make the right to do so dependent upon the lapse of any time, or the occurrence of any event, but provides that it may be done upon such terms and conditions as shall be agreed upon between the railroad company and the commissioners. And the conditions following relate solely to the issuing of the bonds. And it may be observed, in support of the contract and its effect, that the right of the railroad company to require a subscription to its stock by commissioners appointed under the statute was dependent upon contract, without which it could not compel the subscription by them. People v. Batchellor, 53 N. Y. 128; Williams v. Duanesburgh, 66 N. Y. 129. These views lead to the conclusion, approached with some hesitation, that there were elements in the contracts which saved the issue of the bonds from the operation of the constitutional provision in question. And it would seem that effect, so far as necessary, may be given to the provision of the statute that "the acceptance of a subscription founded on such petition shall bind the railroad company accepting the same to the observance of the condition or conditions specified in such petition: provided, however, that non-compliance with any condition inserted in such petition shall not in any manner invalidate the bonds created and issued in pursuance of such petition." Laws 1871, c. 925, § 1. The commissioners agreed to and did make such subscription, and the company agreed to receive it, and did make its certificate of the stock, as before mentioned. It follows that if we are correct in respect to the validity and survival of such contracts the bonds issued pursuant to the proceedings founded upon the second petition, assuming it to have been valid, and at least $15,000, issued pursuant to the first petition, whatever view may be taken of its provision relating to the completion of the road, may be deemed to have been lawfully issued.

The trial court found that the defendant was a bona fide holder of the bonds, amounting to $5,100, held by him, and such conclusion is supported by the evidence. The bonds are in terms negotiable. Such bonds are treated as negotiable in character in such sense as to furnish under some circumstances protection to a bona fide holder when otherwise he would not be enti

tled to it. Bank v. Village of Rome, 19 N. Y. 20; Brainerd v. Railroad Co., 25 N. Y. 496, 499. It is held, and such is the rule in this state, that the term "bona fide holder," in its extent and legal effect as relating to commercial paper, is not applicable to municipal bonds, as they can be created only upon authority conferred by statute, with notice of which any person taking them is chargeable. And as a consequence the liability of the municipality is dependent upon their being issued pursuant to proceedings conducted in compliance with the statute. Cagwin v. Town of Hancock, 84 N. Y. 532; Craig v. Town of Andes, 93 N. Y. 405. That rule is not necessarily extended further than that by the doctrine of the cases to which our attention has been called. And it is contended by the defendant's counsel that without the aid of those contracts the defendant, as a bona fide holder of the bonds, is protected; because they bear date prior to January 1, 1875, and must in his behalf be deemed to have been issued lawfully, pursuant to the authority at the time of their date given by the statute, and the proceedings founded upon it. While it may be that when the proceedings were such as to furnish legal authority, pursuant to statute, to issue such obligation, the bona fides of the holder for value would give him protection, provided the bonds were in fact issued at a time when the law permitted them to issue, which the date would prima facie represent. We cannot hold that their date would be conclusive evidence in behalf of such holder, but think, when it was made to appear that they were issued and delivered without any then existing authority of law, the validity of the bonds would not be supported by the fact that the holder had purchased them in good faith, and paid value for them. Thompson v. Town of Mamakating, 37 Hun, 400.

The railroad has been operated since April, 1875; and from the first of that month until January, 1881,-nearly six years,-interest upon the bonds was paid semi-annually, the money for which was raised by taxation in the town of Cherry Creek Upon this state of facts it is contended that, as against the defendant, a bona fide holder of the bonds, the plaintiff is estopped from effectually asserting that the bonds are invalid. That proposition is not adopted here. It is difficult to see how the tax-payers of the town can be thus estopped by the action of its officers in levying taxes for the purpose of paying such interest, and applying the money to such purpose. Such action was not approved by any assembly of the tax-payers, nor was it dependent upon their direction. But those facts may be entitled to some significance upon the question (also urged in behalf of the defendant) of laches as against a bona fide holder of the bonds, and whether upon equitable considerations the relief asked for should not be withheld. Alcord v. Bank, 98 N. Y. 599, 610. We do not put our determination upon this proposition, or express any opinion upon it. The further contention of the defendant's counsel is that the plaintiff's remedy, if any exist, is at law, by way of defense. This proposition is not supported. The question of the legality of the proceedings which resulted in the adjudication of the county judge, and in relation to the authority to issue the bonds, as claimed by the plaintiff, was somewhat dependent upon facts extrinsic the record; and the doctrine of the case of Town of Venice v. Woodruff, 62 N. Y. 462, is not, and that of Town of Springport v. Bank, 75 N. Y. 397, is, applicable in that respect to the consideration of the question, as represented by evidence on the part of the plaintiff; and, if the question of pleading was raised at the trial, the omission to allege such defense is another answer to such contention. Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541. These views make the result dependent upon the validity of the contracts between the commissioners and the railroad company, and lead to the conclusion that the judgment should be affirmed.

BARKER, P. J., and HAIGHT and DWIGHT, JJ., concur.

PRIOR v. PRIOR et al.

(Supreme Court, General Term, Fifth Department. October 19, 1888.) PARTITION-SALE-JUDGMENT-VACATION-INFANCY.

A judgment directing the sale of lands found by the county court not to be susceptible of partition, though improper under Code Civil Proc. N. Y. § 1533, which provides that in such cases, where it appears that a partition cannot be made without great prejudice to the owners, the complaint shall be dismissed, will not be set aside on the motion of infant owners, when the judgment, sale, and confirmation were unexcepted to; the remedy, if any, being against the guardian ad litem in the action for negligence.

Appeal from Erie county court.

The action was brought in the county court for partition of certain land in the city of Buffalo. Interlocutory judgment was entered November 17, 1881, reciting that partition of the premises could not be made without great prejudice to the parties, as appeared by referee's report; and directed a sale of the land, and division of the proceeds between the parties according to their interests. The sale was made pursuant to the judgment, December 10, 1881; and on January 20, 1882, a final judgment was entered, confirming the sale, directing distribution of the proceeds, etc. The purchase was made by Elizabeth A. Hall, wife of the defendant Jacob V. Hall. The latter had a lifeestate in the land; and the plaintiff, Laura A. Prior, and the defendant Thomas E. Prior, had the estate in remainder. The purchaser afterwards conveyed some of the lands to parties who purchased in good faith. In April, 1886, a motion was made in the county court to set aside the sale, on the ground of inadequacy of price and want of authority to make the sale. From an order denying the motion an appeal was taken, and the order was affirmed on the ground that portions of the premises had been sold to innocent purchasers, and that as to them the sale ought not to be set aside; and on the further ground that the motion was discretionary with the county court, and that its discretion was not reviewable. See 41 Hun, 613. In August, 1887, a motion in behalf of the parties Prior was made to set aside the judgment directing the sale and all subsequent proceedings founded upon it. The motion was granted by the order of the county court, except so far as was essential to support the title of those persons who had taken conveyance from Elizabeth A. Hall, the purchaser before mentioned; and a reference was ordered to take an account, etc. She and the defendant Jacob V. Hall appealed from the order of the county court.

Before BARKER, P. J., and HAIGHT, BRADLEY, and DWIGHT, JJ.
Roberts, Alexander & Messer, for appellants. 0. 0. Cottle, for respondent.

BRADLEY, J., (after stating the facts.) The action came within the provisions of section 1533 of the Code of Civil Procedure, which then declared that the premises in such case could not be sold, and that when it appeared that partition could not be made without great prejudice to the owners the complaint should be dismissed. The direction of the statute was not observed, but, contrary to it, judgment directing the sale was entered, and pursuant to it sale followed. When the review of an order of the county court denying motion to set aside the sale was here, it was held that the judgment and sale were not void, because the county court had jurisdiction of the subject of the action, and of the parties to it. 41 Hun, 613. The right of the plaintiff, as tenant in common with the defendant Prior, of the estate in remainder, subject to the interest of the life-tenant, was given by the provisions of that section, which did not contemplate that the latter would be a necessary party to the action. The right, however, to make him a party defendant in such case is given by section 1539. Before this statute, according to the weight of authority, such an action could not properly be brought by a party not having the possession, actual or constructive, of the premises sought to