J. Hobart Smith, Respondent, v. Thomas Coman, as Sole Trustee of School District No. 1 of the Town of Luzerne, Appellant

J. Hobart Smith, Respondent, v. Thomas Coman, as Sole Trustee of School District No. 1 of the Town of Luzerne, Appellant. h'ustge of a school district — liable for debts contracted by his predecessor — order dissolving the school district — when not reviewed.collaterally. A person who, in good faith, upon the order of a de facto sole trustee of a school district, signed “ Thomas Hall, Trustee,” supplies charts, the value of which does not exceed the amount which such a trustee is entitled to expend (Laws of 1864, chap. 555, tit. 7, § 50, as amd. by Laws of 1886, chap. 393, | 50), may, where the charts were actually received by the trustee and placed in the schoolhouse, recover the price of such charts in an action against such trustee’s successor in office, although before the expiration of the term of such successor the school district was dissolved; as, by virtue of chapter 556 of' the Laws of 1894, he .still remained such trustee for the purpose of paying the just debts of the district. - It seems, that the validity of an order of a school commissioner dissolving a school- district, regular upon its face and from which no appeal was taken to tlie Superintendent of Public Instruction, as authorized by the Consolidatéd School Law, cannot be questioned in a collateral proceeding. Appeal by the defendant, Thomas Coman, as sole trustee of school district No. 1 of the town of Luzerne, and Thomas Coman individually, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 11th day of April, 1899, affirming a judgment of a justice of the peace in favor of the plaintiff, with notice of an intention to bring up for review upon such appeal the order affirming such judgment. The action was brought to recover the price, fifteen dollars and interest, of school charts sold and delivered by the American Book . Company, the assignor of the plaintiff, upon the following order: “ $15.00. Luzerne, N. Y., Nov. 17, 1892. “ To the American Booh Oonypany, 806 and 808 Broadway, New Torh: “ Please send to express office named below, express prepaid, one set Complete School Charts, the same being for School District No. 1, Town of Luzerne, County of Warren, for which I agree to pay Fifteen Dollars within 12 months from date, by P. O. money order, registered letter, or draft on New York. , “ Ship to Thomas Hall, P. O., Luzerne. Express office, Hadley. “THOMAS HALL, “ Trustee.” The answer is a general denial, and also a denial that Hall was trustee; that the defendant is' trustee, or liable as such. Charles R. Patterson, for the appellant. Nenry W. Williams, for the respondent. [MAJORITY — Landon, J. :] Landon, J. : The written order given by “ Thomas Hall, trustee,” for the school charts, unlike a promissory note, is not a complete contract on its face. In addition to the proof of the order the plaintiff had to prove compliance with it by his assignor before any obligation could arise. The bona fide holder, before maturity, without notice of a promissory note, need only look to the face of the paper to ascertain who is liable upon it. The holder of this order had necessarily to look further. The paper itself advised him that the charts apparently were ordered for school district No. 1, but he would have to ascertain whether they 'were in fact delivered for the district and to it, or simply for the maker of the order and to him. If for and to the district, then the district would be liable, if the person giving the order acted within his authority. We make these remarks, because many cases touching promissory notes and contracts, the obligation of which is expressed and complete on their face, are relied upon by the appellant. The géneral rule in' such cases is, that unless the paper on its face shows that the maker acted as agent for another, the paper itself does not bind such other person. These cases do not apply, and, therefore, we need not look into the cases in which the accompanying circumstances qualify the rule. The evidence shows that the charts were delivered as ordered, and applied to the use of the school district. The statute (Laws of 1864, chap. 555, tit. 7, § 50 as amd. by Laws of 1886, chap. 292; E. S. . [Banks’ 8th ed.) 1297, § 50) authorized the trustee to make such expenditure for such purpose within certain limits. The limits .were not exceeded. The evidence shows that Thomas Hall was de facto sole trustee vof the district when he gave the order, received the charts and placed them in the schoolhouse. Whether he was trustee de jure is immaterial since that question is not involved in the issues. His title was under appointment by the school commissioner of. the county made October, 1892. The commissioner had power to make it in the cases specified in chapter 331, Laws of 1888, amending title 7, section 30 of the act of 1864 (E. S. [Banks’ 8th ed.) 1292, § 30). The appointment is regular on its face and under it Hall- entered upon the office and discharged its duties, and no proceeding has been taken to determine whether he also had a title de jure. The cases cited by the appellant might be proper in aid of such a determination, but they have no relevancy here. The de facto title is sufficient as to third persons dealing with him in good faith. (Morrison v. Sayre, 40 Hun, 465; De Wolf v. Watterson, 35 id. 111; Barrett v. Sayer, 34 N. Y. St. Repr. 325; O'Neil v. Battie, 40 id. 65.) The defendant contends that it was not shown that he was the trustee of the district or liable as such at the time the action was commencéd. The evidence supports the conclusion that the defendant was regularly elected trustee at the school meeting held in 1894 and again .in 1895. The records were lost and the oral evidence of the elections was competent and was not disputed. The declarations of the defendant in 1894 and in 1895 that he was the trustee were shown. His term upon each election was for one year, which .under the last election would expire in August, 1896. Meantime in July, 1896, the school district was dissolved by order of the school •commissioner. The effect of the dissolution is thus declared by chapter 556, Laws of 1894 (Consol. School Law, tit. 6, § 12): “ Though a district be dissolved, it shall continue to exist in law for the purpose of providing for and paying all its j ust debts; and to that end the trustees and other officers shall continue in office, and the inhabitants may hold special meetings, elect officers to supply vacancies and vote taxes; and all other acts necessary to raise money and pay such debts shall be done by the inhabitants and officers of the district.” The defendant, therefore, continued to be trustee for the purpose of paying all the just debts of the district. The appellant challenges the order of dissolution as void because not made upon proper notice. The order is regular on its face. The commissioner had jurisdiction of the subject-matter. The power of review upon appeal by any person conceiving himself aggrieved is vested in the Superintendent of Public Instruction in the first instance. (Consol. School Law, tit. 14, § 1.) It does not appear that any such appeal was taken. The evidence permits ns to assume that the order has been acquiesced in by all parties in interest, and we, therefore, decline to review it in this collateral action, even if it should fail to appear that every preliminary jurisdictional step had been taken. Consensus tollit errorem. If we •assume t-he order to be void, then the district exists and the defendant as trustee holds over until his successor is appointed. (Consol. .School Law, tit. 7, § 24.) The action is in the proper form. (Code Civ. Proc. §§ 1926-1929.) There are various objections to evidence. There was some immaterial evidence given, but the facts upon which the liability of the defendant depends were proved by competent evidence, and were not disputed. Un such evidence the plaintiff was entitled to judgment, no matter how much evidence of other sort was received. The judgment should be affirmed. All concurred. Judgment affirmed, with costs.