and 106 New York State Reporter statements that plaintiffs claim George W. MacCallum made in regard to acting as agent for Mrs. Överacker consists of the fact that George W. MacCallum negotiated with a real-estate agent in regard to the purchase of the lot on which the building was erected, and in regard to obtaining a building loan thereon of $1,500 for her, and the further fact that subsequent to the completion of the house George W. MacCallum had occupied the same, and had paid to the mortgagee the interest and $300 on account of the principal, and had also paid the taxes against the property. Thomas MacCallum admits that he told George W. MacCallum to arrange for the purchase of the lot in connection with the sale of another piece of property belonging to Mrs. Overacker, and in connection therewith to obtain a building loan of $1,500 thereon; and George W. MacCallum states that he did have charge of such negotiations, and that he was paid therefor $100 as and for his commissions. The principal of the loan to Mrs. Overacker was payable $10 per month, and Thomas MacCallum says that after the house was completed he rented the same indefinitely to said George W. MacCallum on his agreement to pay taxes thereon and the interest, and $10 a month on said mortgage. The plaintiffs were allowed to introduce testimony in regard to statements claimed to have been made by George W. MacCallum at the time the contract was made with them for the work and materials for which the lien was filed, and also as to statements claimed to have been made by him relating to other contracts for materials and work on houses owned by Mrs. Overacker. These statements are to the effect that George W. MacCallum was acting as agent for Mrs. Overacker, and to the further effect that he had had considerable trouble with people who were hounding him pretty hard, and that it became necessary for him to shift his property around in the family, and that Mrs. Overacker held the title, and he was acting apparently for her. The plaintiffs never talked with Mrs. Overacker, nor communicated with her, and they never had any dealings with Thomas MacCallum, the agent of Mrs. Overacker. All the payments made to them on account of this and prior contracts made with George W. MacCallum were in cash, or by checks signed in his individual name. The written contracts made by said George W. MacCallum for plastering the house in question and for cementing the cellar were made. by him in his individual name. There is no evidence whatever showing that defendant Overacker or Thomas MacCallum ever recognized George W. MacCallum as an agent for Mrs. Overacker in the erection of houses, or that they or either of them had any knowledge of the statements which the plaintiffs claim were made to them by George W. MacCallum. There is no evidence of any apparent authority in George W. MacCallum to act as agent for Mrs. Overacker, except as stated. If the statements were made by George W. MacCallum as claimed by the plaintiffs, they may have been made for his own benefit and for the purpose of obtaining credit thereby. Mrs. Overacker resided in the same city with the plaintiffs, and there was nothing to prevent the plaintiffs from investigating for themselves the authority of MacCallum. After evi dence has been introduced tending or fairly tending to show that a person has authority to act as the agent for another, evidence of the acts of the agent under such claimed authority may be admitted. But there is nothing in this case to justify the admission of the statements as to agency claimed to have been made by George W. MacCallum to the plaintiffs. All of such evidence was duly objected to, and was received subject to the appellant's exceptions to the rulings thereon. On the record as it now stands, the receipt of such evidence was error, and requires a reversal of this judgment. The plaintiffs sought to show that George W. MacCallum had not been paid the full amount of $1,850 as provided by the contract. We have not considered that question, for the reason that the lien was filed against Mrs. Overacker as owner, and not against MacCallum as contractor, and the action was brought, tried, and decided upon the theory that MacCallum was the agent of the appellant. Judgment reversed. New trial granted; costs to appellant tc abide the event. All concur, except SMITH, J., not voting. (35 Misc. Rep. 540.) OSWEGO CITY SAV. BANK v. BOARD OF EDUCATION OF UNION FREE SCHOOL DIST. NO. 2, TOWNS OF MANHEIM AND OPPENHEIM IN HERKIMER AND FULTON COUNTIES. (Supreme Court, Special Term, Herkimer County. July, 1901.) 1. SCHOOL-DISTRICT BONDS-VALIDITY. Under Laws 1895, c. 273, § 10, providing for the issue of bonds by a union free-school district for the purchase of school sites or structures, such a district may issue bonds for a school site and a school house already erected thereon, though a very small part of the price represents property not properly school property. 2. SALE-CASH PAYMENT. A school district sold certain bonds at public auction at par to the agent of a private society owning a school house and its site. Such agent and a representative of the school district went to a bank, which furnished the purchase money, which the agent tendered and paid to the representative of the school district as the price of the bonds. The representative of the school district then tendered such money to the agent of the society owning the school house, and received therefor a deed of the site. Held, that the statute providing that school bonds shall be sold at par and for cash was complied with. 8. SAME-MUTILATED BONDS-REISSUE. The bonds of a school district were originally written on a typewriter, but were declared by dealers in bonds to be unmarketable in that form. They were afterwards mutilated, and replaced by printed bonds of the same tenure. Held, that the printed bonds were validly executed. Action by the Oswego City Savings Bank against the board of education of union free school district No. 2, towns of Manheim and Oppenheim, in the counties of Herkimer and Fulton, to recover on certain bonds issued by defendant. Judgment for plaintiff. Elisha B. Powell, for plaintiff. A. M. Mills, for defendant. and 106 New York State Reporter HISCOCK, J. There is practically no dispute of fact in this case. In 1895 there was a private educational corporation at Dolgeville, N. Y., known as the "Dolgeville School Association." It owned a school house and site, with fixtures and some personal property and appliances. The plan originated of a purchase of this property by the defendant for the sum of $18,000, said purchase price to be met by the issue of bonds. The proposition of sale made by the Dolgeville School Society showed a valuation of real estate of $19,500, and a valuation of fixtures and personal property of $2,158.54, for all of which the school society agreed to accept the sum of $18,000. All of the personal property included in said valuation was naturally incident to the maintenance and operation of a school, and a large portion of it might be regarded as ordinary fixtures, such as desks, cupboards, racks, etc The appraised valuation of the other personal property, which, perhaps, could not be regarded as fixtures naturally and necessarily appurtenant to a school house, did not exceed, upon the basis of $18,000 for the entire plant, a few hundred dollars. Steps which are conceded, upon the submission to me, to have been sufficient and properly and legally taken, were taken under the statute, through and at a meeting of the voters of the district, to authorize the acts and vote the taxes necessary for the purchase of this property; and subsequently the trustees of said school district took what are likewise conceded to have been the necessary and proper preliminary legal steps for an issue of bonds with which to pay for said property. As I have stated, no question is made, upon this submission to me, but what the necessary and proper legal and statutory steps were taken at the meeting of the voters of the district, and by the board of trustees, to authorize the purchase of the property in question, and the issue of bonds with which to provide means of paying therefor, subject to the claim of defendant that the purchase included the purchase of certain property which could not be met under the statute with an issue of bonds. The bonds were duly advertised and sold at auction in form as provided by statute. Upon such auction one Armstrong, who really represented the school society which was selling the property, bid off the bonds at par as provided by the statute. At the time e paid no cash for them, but subsequently he went with some officer representing the defendant to a bank in Herkimer. There Armstrong went through the form of tendering to the representative of the defendant $18,000 for the bonds purchased, and the representative of the defendant went through the form of tendering and paying said $18,000 to the representative of the selling school society for the property which was to be purchased as aforesaid. As a matter of fact, the $18,000 was furnished by the bank, and was not carried away by anybody, and the net result was that the selling school society got the $18,000 of bonds and the defendant obtained the deed for the property which was to be sold. These bonds which were so delivered had been duly executed by the proper officials of the defendant, and were regular in form and within the provisions of the statute. They were, however, struck off upon a typewriter. Subsequently one Alfred Dolge, who was the president of the board of education of the defendant, and likewise a member of the executive committee of the Dolgeville School Society, the vendor, went to New York for the purpose of disposing of the bonds. He went to some brokers, who, in effect, told him that they could not dispose of typewritten bonds, but that it would be necessary to have them printed and struck off in the form usually adopted for such bonds. The brokers caused printed forms of bonds to be struck off, and subsequently sent them to Mr. Dolge, who had returned home. No. 1 of the original bonds was never reprinted or exchanged in any manner; but for the other 17 bonds of the issue Mr. Dolge procured the bonds, prepared under the supervision of the brokers, to be duly executed by the proper officials of the defendant in proper form, and subsequently he went with said second lot to New York to the brokers. The original typewritten bonds were canceled and mutilated by being cut up and slashed with a knife, and were delivered back to the defendant, through its president, Mr. Dolge. The brokers, taking the 17 newlyprepared bonds executed as aforesaid, paid the purchase price thereof, and subsequently, in the ordinary course of business, disposed of them; the one in question coming into the hands of the plaintiff, who paid value therefor and became a bona fide holder thereof. The original typewritten bonds, canceled and mutilated and delivered to Mr. Dolge, an officer and representative of the defendant aforesaid, seem to have been passed around some subsequently; it being claimed that they passed into the possession of the vendor school society above named. At any rate, no claim has ever been made upon them, or that they were still outstanding, nor have any of the coupons thereof been presented; but they have been produced upon the trial of this action and submitted as exhibits. For several years the defendant paid the coupons upon this and other bonds, and no question was raised in regard to their validity. Upon these facts, the defendant insists that said issue of bonds, including plaintiff's, is invalid, for the following reasons, in substance: (1) That they were issued for the purpose of meeting the purchase price of the site, and a school house already standing thereon, and of certain personal property, and it is claimed that the statute did not authorize such issue. (2) That the transaction between Armstrong, the purchaser of the bonds, and the defendant, as it is claimed by defendant, amounted to an issue of the bonds for the purchase price of the property, and there was not a sale of the bonds for cash as contemplated by the statute. (3) The bonds, of which plaintiff's is one, were not the bonds originally executed by the defendant's officers, and, as claimed, the authority of such officers was exhausted when they signed and executed the typewritten bonds, and they had no power to execute the printed or lithographed bonds in the place thereof. I will discuss these defenses in the order stated. 1. Defendant's counsel does not argue very strenuously that these bonds are invalid because issued for the purpose of acquiring a site with a school house already on it, rather than for the purpose of acquiring a site and of then building a school house thereon, although he suggests that question. He argues more strenuously the proposition that this purchase included certain personal prop 72 N.Y.S.-2 and 106 New York State Reporter erty, and that, because the value of such personal property was included in the sum of $18,000 for which these bonds were issued, the entire issue is invalid. I am not able to conclude that bonds held by a bona fide holder, upon which interest has been paid without question for years, should be held invalid, because of any of the facts which appear in this case in respect to the two points suggested. That part of the section covering this subject, being section 10 of chapter 273 of the Laws of 1895, as amended, which relates to the issue of such bonds as these, should be considered and construed in the light of the preceding part of the section. Such preceding part of the section provides that: "A majority of the voters of any union free school district may authorize such acts and vote such taxes as they shall deem expedient for making additions, alterations or improvements to or in the sites or structures belonging to the district, or for the purchase of other sites or structures, or for a change of sites, or for the erection of new buildings, or for buying apparatus or fixtures." The provision especially relating to the issue of bonds then says: "For the purpose of giving effect to these provisions, trustees or boards of education are hereby authorized, whenever a tax shall have been voted to be collected in installments for the purpose of building a new school house, or building an addition to a school house, or making additions, alterations or improvements to buildings or structures belonging to the district, or for the purchase of a new site or for an addition to a site, to borrow so much of the sum voted as may be necessary issue bonds," etc. and to It will thus be seen that the provision of the statute governing the meeting of the residents of the district is broad enough to authorize the purchase of a site, or a building, or a site and a building, and also to authorize the purchase of personal property and fixtures, and then the board of education or the trustees are authorized to issue bonds "for the purpose of giving effect to these provisions." I think it would be a very narrow construction of the latter provision to hold that it authorized the issue of bonds with which to buy a site, or with which to build a building, but did not authorize the purchase of a site with a building already thereon, as in this case. The latter provision, with reference to the issue of bonds, certainly does not recapitulate in words all of the purposes for which the voters are authorized to vote and provide. It perhaps is incomplete in this respect, but certainly it is to be construed somewhat with reference to the first provisions. So with reference. to the personal property which was involved in this purchase. Even if it should be held that the provisions directly relating to the issue of bonds excluded the purchase of personal property as one of the items for which bonds might be issued, I still think that the entire issue of bonds in the hands of bona fide purchasers should not be held invalid because an inconsequential item of that kind has been. included in the aggregate sum. Manifestly, the value of what could be regarded as personal property in this case, as distinguished from furniture and fixtures naturally appurtenant to a school house, would be very insignificant as compared with the total amount. There seems to be no doubt but what the representatives of the defend |