Page:Federal Reporter, 1st Series, Volume 10.djvu/22

 10 FEDERAL REPORTES. �commissioners to borrow money and execute bonds for the town in aid of a railroad company, It provided, however, that they should have no power to do so until the written aasent of two-fchirds of the taxables of the town should have been obtained and filed in the clerk's office of the county, togethei- with the affidavit of such superviser or commissioner, or any two of them, to the efifeot that the persons assenting comprised two-thirds of the taxables. Assents were filed, together with the requisite affidavits, and the bonds were issued, but it was not shown upon the trial that two-thirds of the taxables had in fact assented. Notwithstanding the decision of the court of appeals of this state, that under this statute the omis was on the bondholder to show in a suit against the town that two-thirds of the taxables had assented, (Stavin v. Town of Genoa, 23 N. Y. 439,) and notwithstand- ing the decision of the same court upon a very similar statute in Qould V. Town of Sterling, 23 N. Y. 456, the supreme court heldthat the aot constituted the supervisor and commissioners a tribunal to determine whether the requisite assents had been obtained, and their decision, as evinced by making the affidavits, and issuing the bonds, was oonclusive in favor of a bonafide holder. �The bonds in the present case were issued under a statute which authorized commissioners appointed for the town to borrow money and execute bonds for the town in aid of the railroad company. The act provides that the authority of the commissioners, shall only be exercised upon the condition that the assent shall be obtained of a majorityof the taxables, and declares that the fact that such majority has been obtained shall be "proved" by the affidavit of one of the assessors of the town. The act makes it the duty of the assessors to make such affidavit when the requisite assents shall have been obtained. If there is any material difference between this act and the one con- sidered in Town of Venice v. Murdock, it ib that here the statute declares the fact of the consents having been obtained "proved" by the affidavit, while in the other such effect could only arise by im- plication,— a difference which it might be supposed would materially fortify the position of the purchasers of the present bonds. �Since these bonds were issued the court of appeals has decided, not- withstanding the declaration of the act that the faots that the requi- site assents have been obtained shall be proved by the affidavit, that it is still. incumbent on the purohaser to ascertain whether the fact thus proved is true or not. In Town of Venice v. Murdock the supreme court held he was not required to look behind the recital in the bond. ��� �