(dissenting):
On the 13th day of June, 1873, George Still and others presented a petition to the county judge of Wayne county praying for the appointment of commissioners to drain certain low, wet, swamp and bog lands situated in the town of Lyons, in that county. The County Court thereupon appointed George W. Dennis, Sidney T. Cook and Clark S. Edwards drainage commissioners. Thereafter and on the 17th day of June, 1873, the commissioners made and filed their determination, in which they determined to drain the lands described in the petition. Subsequently the commissioners entered into a contract with John H. Munn, the defendant’s intestate, to dig and construct the proposed ditch, and agreed to pay him therefor a stipulated price in their .certificates of indebtedness. Thereupon Munn entered into a written agreement with W. Facer, H. Travell, George Bridges, L. Dudley and Joseph Bridges to dig and construct a part of the ditch and agreed to pay them therefor the sum of one dollar and seventy-five cents per rod, one-half to be paid in cash on the completion of each section of fifty rods, the remaining one-half to be paid in certificates of indebtedness on the completion of the entire job. Pacer, Travell and others thereupon entered upon the performance of their contract and dug as much of the ditch as they agreed to dig, and Munn in the performance of his contract paid them therefor one-half in cash and the other half in the certificates of indebtedness, issued to him by the drainage commissioners.
It appears from the undisputed evidence in the case that the certificates of indebtedness mentioned in the contract were certificates which were to be issued by the commissioners of drainage-The certificates of indebtedness so issued and delivered to Facer, Travell and others were by them transferred to the plaintifPs intestate. Subsequently Facer, Travell and others executed and delivered *33to plaintiffs intestate an assignment of an account for work, labor and services done and performed by tbem for Munn. The account so assigned by tbem respectively was for the same work, in the digging of the ditch, for which the certificates of indebtedness had been issued and delivered to them.
The commissioners have never made their assessment or collected any taxes thereon and the certificates have not been paid. It was-conceded on the trial that at the time of the transaction both parties supposed that the certificates were good for the money.
This action is brought upon these assignments of accounts, and the plaintiff claims the right to recover the amount thereof of the defendant. It was contended by the plaintiff on the argument that the certificates of indebtedness issued by the drainage commissioners .were void and worthless, for the reason that they had neglected to determine whether or not the ditch was necessary for the preservation of public health. It is possible that the proceedings are defective in this regard. (In the Matter of the Application of David R. Ryers et al., for the Appointment of Commissioners, etc., 72 N. Y., 1; Burk v. Ayers et al., 19 Hun, 17.) But this question I do not consider it necessary to determine. If we concede what the plaintiff claims in this regard, still I am unable to see how he can recover in this action. Munn was the first contractor and received his pay in these certificates. The written agreement, entered into by him with Facer, Travell and others, was to the effect that they should do certain work in the digging of the ditch; that they should receive therefor a sum agreed upon, one-half of which should be paid them in cash, and the other one-half in these certificates. This agreement was strictly and fully performed on the part of Munn. The certificates were accepted by Facer, Travell and the other assignors of the claims in suit, in payment for the work performed by them under the contract. It is true that at that time all of the parties supposed that the certificates were good and valid, and that the money called for by them would be paid. The plaintiff’s assignors, however, in entering into the agreement and in accepting the certificates, took their own chances in reference to their validity or payment.
The commissioners had been duly and legally appointed. They had taken the oath of office and entered upon the discharge of their *34duties. They were authorized by the statute to issue certificates of indebtedness to }iay their expenses in digging the ditch. The only defect is that the commissioners had not filed their determination that the drain was necessary to preserve the public health. The certificates were therefore the papers of third persons. They were not issued in payment of a precedent debt, but under the contract they were received as a part of the consideration, in accordance with its terms, for the services performed. In such a case they amount to a payment and satisfaction. The law in this regard appears to be well settled. In the case of Gibson v. Tobey (46 N. Y., 637) the rule was stated by CnuRcn, Ch. J., as follows: “ If a vendor of goods receives from the purchaser the note or bill of a third person, such note or bill will be deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly-proved ; and in such a case the onus is upon the person receiving the paper; but when such note or bill is received upon a precedent debt the presumption is that it was not taken in payment, and the onus of establishing that it was so received is upon the debtor.” (To the same effect is Gibson v. Tobey, 53 Barb., 191; Bates v. Cherry V., S. and A. R. Co., 3 Thompson & Cook, 16 ; same affirmed on the opinion of the General Term, 59 N. Y., 641; Noel v. Murray, 13 id., 167; Keeler v. Salisbury, 33 id, 648-653.)
The case of Roberts v. Fisher (43 N. Y., 159) is clearly distinguishable. In that case the note of Homer, Rice & Co. was delivered in payinent and discharge of a precedent debt. Homer, Rice & Co. had failed before the note was delivered, so that at the time of its delivery it was worthless. The court in that case held that it was not a payment of the debt. This decision we do not regard as in conflict'with the decision in the case of Gibson v. Toby, but directly within the rule as therein stated in reference to a precedent debt.
Again, it is contended on the part of the defendant that these certificates are valid and that payment of them can be enforced under the conceded facts in the case; that if the commissioners have been guilty of negligence in the discharge of their duties they are personally liable. (Olmsted v. Dennis, 77 N. Y., 378.) Under the view I have taken of the case it does not become necessary to consider this question.
*35I regard these certificates as a part of the case and properly .admitted in evidence. It perhaps was not material as to the manner in which the commissioners paid Munn for the digging of the ditch, bnt as part of the history of the case and as showing his relation to ihe parties, I fail to see how it did harm. The refusal of the court to permit the assignors to testify that they would not have taken the certificates unless they supposed they were good, if error was cured by the admission of the parties subsequently made, that each party received his certificates supposing it was good for the money.
I think that the motion for a new trial should be denied.
New trial granted, with costs to abide the event.