The bonds issued were less than 20 per cent. of the assessed value of the property within the town as appeared by the assessment roll verified and filed by the assessors, but were more than 20 per cent. of the value as equalized by the Board of Supervisors. The town had no common seal and the commissioners did not affix their individual seals, but signed opposite the letters L. S. printed within scrolls.

In September, 1875, defendant purchased thirty-two of the $500 bonds issued in October, 1872, in good faith, paying 95 cents on the dollar of their face value and still holds them. At the time he purchased common law seals were affixed to the signatures, but by whom is unknown. The court found that they were affixed by some former owner without fraudulent intent. All the coupons falling due prior to March 1, 1878, have been paid. No proceedings were taken to review or set aside the adjudication of the county judge, and defendant never sued or threatened to sue the town. It was claimed that the bonds are void because, 1, the county judge did not acquire jurisdiction to make the adjudication; 2, the bonds were not sealed; 3, that they were altered after execution and delivery by affixing common law seals without the authority of the town or its commissioners; 4, the bonds were payable less than thirty years from the dates when they were delivered; 5, that the

total amount directed by the adjudication were without power to cancel the bonds and reissue a like amount; 6, that the bonds exceeded 20 per cent. of the tax roll of 1869, as equalized, though not exceeding 20 per cent. of the assessment roll.

The Special Term held that the 1, 5 and 6 defenses were not tenable, but that the 2, 3 and 4 were, and ordered judgment to be entered directing defendant to surrender its bonds for cancellation.

Isaac S. Newton and Edward B. Thomas, for applt.

J. McGuire, for respt.

The

Held, That the county judge acquired jurisdiction to adjudge that a majority of the taxpayers representing a majority of the taxable property had consented to the creation of this debt and to appoint commissioners to carry the judgment into effect. petition asserts this fact in legal effect, though not in the precise words of the statute. The term "representing" in the petition, in connection with such portions of the petition as are before us, fairly construed, means that the undersigned stand for or are a majority of the taxpayers of the town; that the signatures hereunder written personally represent a majority of such taxpayers. It cannot be construed, as is contended, to mean that the undersigned represent as agent or otherwise a majority of the taxpayers. The petition and the verification together constituted the petition as presented to the county judge and upon which

he acted. The petition and the accompanying affidavit must be read and construed together. 18 Blatch., 165.

When a petition is filed asserting the jurisdictional fact the county judge has jurisdiction to proceed and must proceed with the inquiry. His adjudication is based upon the signatures to the petition and upon the consents of the taxpayers given during the pendency of the proceedings before him, and if at the close of the proceedings a majority of the taxpayers representing a majority of the taxable property have consented he is to so adjudge and appoint commissioners. His adjudication is based upon the facts as they then exist and the statute makes it final unless overthrown upon certiorari.

The statute does not prescribe the form or contents of the order, that it shall be in writing or that it shall be entered, § 1, nor that the order and notice be separate instruments. The county judge gave the notice required by statute and it is hypercritical to say that his act is void because he did not by a formal written order, en tered, direct himself to do that which it was his duty to do and just what he actually did do.

Also held, That the term "assessment roll" has been defined to mean the list or roll of taxable property and persons completed, verified and deposited by the assessors with the town clerk as required by statute. 15 N. Y., 316; 49 id., 243; 68 id., 321; 96 id., 544. Words and terms having a

precise and well settled meaning in the jurisprudence of a country are to be understood in the samne sense when used in its statutes, unless a different meaning is unmistakeably intended. 1 Black., 459; 3 H. L. Cas., 638.

Also held, That the bonds in suit are not invalid because not sealed. 104 U. S., 501; 75 N. Y., 408; 16 Blatch., 192; 5 Johns. Ch., 224; 28 N. Y., 318; 77 id., 350; 15 Pet. 290; 9 Daly, 238; 29 Barb., 442; 24 N. Y., 114.

Also held, That the action cannot be maintained, because the seals were affixed in the manner found by the court. The court does not find that the seals were affixed with a fraudulent intent and there is no evidence in the case to warrant such a finding. See 56 N. Y., 31. It is difficult to see how the addition of the seals altered, in any material respect, the obliga tion of the town, and unless the legal effect of the obligations were changed the alteration, if it be such, was an immaterial one. N.Y., 318; 5 Taunt., 707; 1 Den., 239; 12 Hun, 521. Again, when the maker of a negotiable instrument puts it forth in a condition so that an alteration can be made without defacing it or exciting the suspicions of a prudent man, the maker is estopped from urging the alteration as a defense against a bona fide holder. 54 N. Y., 234; Dan. on Neg. Insts., 377.

58

Also held, That the fact that the bonds become due within less than thirty years from the date of their delivery is not a sufficient reason for their cancellation. The

bonds are payable thirty years from their date with semi-annual interest as prescribed by the statute. By Chap. 507, Laws of 1870, the commissioners were authorized to deliver the bonds from time to time as might be agreed upon between them and the railroad company. It was not intended that the bonds should be dated at the time of their delivery. Such a construction would require the bonds to be payable at different dates.

Potter v. Greenwich, 26 Hun, 326; 92 N. Y., 662, distinguished.

The fact that the bonds in suit are substitutes for prior bonds to a like amount and were substituted for the reason and in the manner described is not a ground for their cancellation. The town had created a debt which it is bound to pay and it cannot, without tendering payment, compel holders of the evidences of its indebtedness to surrender them for cancellation, though irregularly issued.

Also held, That the commissioners and Supervisor having for seven years requested the Board of Supervisors to levy a tax for the interest on these bonds and the taxpayers having taken no steps to review the determination of the county judge, but allowed innocent purchasers to become owners of the bonds, the town is by its action and inaction estopped from requiring the bonds to be surrendered for the alleged defects in the mode in which they were issued by the commissioners.

Judgment reversed and and new trial ordered, costs to abide event.

Opinion by Follett, J.; Boardman, J., concurs; Hardin, P. J., concurs, except as to estoppel.

ADJOINING OWNERS.

NUISANCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

John E. Saal et al., applts., v. David Abeles, respt.

Decided Jan., 1885.

The owner of a city lot may fill up his lot and build upon it, and the surface water may be thrown from it upon adjoining lots, and made to flow upon them in a different way and larger quantities than before, without being liable in damages therefor. He may not collect such water into a channel and cast it upon his neighbor's lot, but he is not bound, for his neighbor's protection, to collect the surface water which falls upon his lot and lead it into a sewer.

Appeal from judgment of County Court entered upon a nonsuit.

Action to recover damages for a nuisance alleged to have been erected by defendant by the filling up and raising of his land, thereby causing the water to flow therefrom upon the adjoining lands of plaintiff. It appeared that the natural surface of defendant's lot is higher than plaintiff's, that both lots are situated at the foot of a natural slope of several hundred feet in extent, and receive the surface water from about twelve other lots lying above the same. For merly there was a ditch cut by one A., in the rear of, but not on the lots of the parties, which carried away a portion of the water coming down said slope. In 1877 defendant built a house upon his lot, and

spread the earth taken from the excavation for a cellar over the surface of his lot, thereby filling the depressions and making the same level. Before this improvement some of the water coming upon defendant's lot ran over the same to Gregory street, upon which both lots fronted. The building of the house and the grading of the lot stopped the flow of water in that direction. In 1878 or 1879 A. stopped up said ditch, and after that the water came upon plaintiff's lot in large quantities, impairing his trees, vines and walks. It was not shown that

collect the surface water which falls upon his lot and lead it into a sewer. 76 N. Y., 60; 65 id., 341; 86 id., 140.

Under this rule plaintiff wholly failed to establish any cause of action against defendant, and the county judge properly denied plaintiff's request to go to the jury upon any question in the case, and the non-suit was properly granted. Judgment affirmed.

Opinion by Childs, J.; Haight, Bradley, and Angle, JJ., concur.

LEASE. RENEWAL.

terest in said ditch, or the right to have the same kept open. It did not appear that defendant had, by the improvement made by him, or in any other manner, collected the surface water coming upon his lot and cast it upon plaintiff's land in a body, or that the flow of water was in any manner increased by such improvements and change of the surface of his lot. The court non-suited plaintiff.

William E. Edmonds, for applt.

Raines Bros., for respt.

Held, That the owner of a city lot may fill up his lot and build upon it, and the surface water may be thrown from it upon adjoining lots, and made to flow upon them in a different way and in larger quantities than before, without being liable in damages therefor. He may not collect such water into a channel and throw it upon his neighbor's lot, but he is not bound, for his neighbor's protection, to

Vol. 20.-No. 23.

TERM. SECOND DEPT. Ellen Tilyou, applt., v. The Town of Gravesend, respt.

Peter A. Tilyou, applt., v. The Town of Gravesend, respt.

Decided Dec., 1884.

By resolution of the electors of Gravesend in 1871, it was provided that the common lands should be let only at public auction on notice, and that no lot should be let at a time more than one year prior to the expiration of any existing lease thereof, nor more than ten years. By resolution in 1878 this was amended by adding that the Land Commissioners are authorized to renew any existing lease upon terms which they deem most advantageous to the town. Plaintiffs held leases which expired in 1882 and 1883. The Commissioners renewed them in 1880 and 1879 respectively. Held, That the limitation in the resolution of 1871 was not nullified by the resolution of 1878, and that the renewals were invalid.

Appeal from judgment entered on stipulation and decision at Special Term.

In 1871 the electors of the town of Gravesend in town meeting