App. Div.] 379): "The statute expression is No funded debt shall be contracted, etc. The debt created by the purchase of the market grounds was not, in any sense of the expression, a funded debt, nor is it apparent that in the use of the term the Legislature intended to include any permanent debt payable on time, with interest, whether for money borrowed or otherwise. We are rather to understand the expression to have been used in the sense and indicating the meaning in which it had been previously and ordinarily used and understood by legislators and the commercial world. A funded debt' has a well-defined signification. The funding of a debt is the pledging of a specific fund to keep down the interest and ultimately discharge the principal. (1 Bouv. L. Die. 551; 1 McCullough's Com. Dic. 689; 1 Eney. Am. 337.) The benefits arising from a funded debt differ materially from the ordinary obligations of a State or corporation to pay money. In the latter case there need be no pledge or collateral security for payment. But a funded debt rests on some pledge of the public or corporate revenue or property, which is set apart as a fund to keep down the interest and extinguish the principal of the debt. When the extinguishment of the debt is contemplated it is called a sinking fund, and it is so denominated in the act of 1853. The funding system is resorted to for the improvement of public or corporate credit by giving creditors a specific lien either upon revenues or property. It is, in effect, a mortgage. The 3d section of the act of 1853 limits the whole amount of debt which a municipal corporation may own. The 5th section relates to another subject, and regulates the manner of contracting a particular description of debt, viz., a 'funded debt.' Though the expression, funding a debt, has been sometimes incorrectly used to signify the aggregating of numerous floating debts of a municipal corporation, created at different times and upon different considerations, and borrowing money upon bond to pay off the whole, yet even that use of the expression does not embrace this case. In those instances the law contains what may be denominated a funding clause or section, imposing an obligation upon the corporation to raise, by tax, the amount as therein directed, to pay the interest and principal of the loan.” SECOND DEPARTMENT, JUNE TERM, 1898. Aside from this case I can find no authority upon the question. We are, therefore, relegated to the General Municipal Law, to ascer SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. tain whether there is a definition or description of a funded debt. The headings of the sections read: Section 4, "Temporary loans;" section 5, "Funded debt;" section 6, "Payment of municipal bonds;" section 7, "Funded and bonded debts;" but the body of the statute nowhere draws in words a definitive distinction between the classes. The temporary loan seems to be one which is to be paid with and by the taxes of a current fiscal year, while the funded debt seems to be one where provision is to be made for the annual raising by tax of the sum necessary to pay for the interest and principal as they respectively mature. I think the Legislature intended to include in the term "funded debt," all municipal indebtedness embraced within or evidenced by a bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of the necessary funds by future taxation and the quasi-pledging, in advance, of the municipal revenue. And this, I think, is consistent, and in accord with the definition of Judge SELDEN, that it is essential to the idea of a funded debt that it should be divided into parts or shares, represented by different instruments, so that such parts or shares may be readily transferable. In this view I am confirmed by what may be termed the commercial understanding of the words "funded debt.” Under the title of National Debt, the Encyclopædia Brittanica says: "When a State has a variety of loans at varying rates of interest, it may consolidate them into a single debt at a uniform interest. For example, in 1751 several descriptions of English debt were consolidated into one fund bearing a uniform interest of three per cent, an operation which gave origin to the familiar term 'consols (consolidated funds). In the early days of the English national debt, a special tax or fund was appropriated to the payment of the interest on each particular loan. This was the original meaning of funds,' a term which has now come to signify the national debt generally. So, also, the origin of the term 'funded,' as applied to a debt which has been recognized as at least quasi-permanent, and for the payment of the interest on which regular provision is made. Unfunded or floating debt, on the other hand, means strictly loans for which no permanent provision requires to be made, which have been obtained for temporary purposes, with the intention of SECOND DEPARTMENT, JUNE TERM, 1898. App. Div.] paying them off within a brief period. Exchequer and treasury bills are included in this category, and such other moneys in the hands of a government as it may be required to reimburse at any moment. Where a government is the recipient of savings banks deposits, these may be included in its floating debt, and so, also, may the paper money, which is issued so largely by some governments. The unfunded debt of England is comparatively small, while in Austria and some other States it has obtained formidable and embarrassing dimensions. A State with an excessive floating debt must be regarded as in a very critical financial condition." * * In Rawle's edition of Bouvier's Law Dictionary (at p. 862), under the heading "Funding System," it is said: "The national debt of England consists of many different loans, all of which are included in the term funds. * In America the funding system has been fully developed. The general government, as well as those of all the States, have found it necessary to anticipate their revenue for the promotion of public works and other purposes. The many magnificent works of internal improvement, which have added so much to the wealth of the country, were mainly constructed with money borrowed by the States. The canals of New York, and many railroads in the Western States, owe their existence to the system. The funding system enables the government to raise money in exigencies, and to spread over many years the taxation which would press too severely on one." One of the shortest and pithiest opinions ever reported may be found in Houghton v. Gilbart (7 Car. & P. 701), where a question arose as to the meaning of the word "cargo." One of the counsel was referring to the then standard dictionary when Chief Justice TINDAL interrupted him, saying: "It is a question of mercantile construction. You had better lay aside your dictionary and appeal to the knowledge of the jury, for, after all, the dictionary is not authority." The "jury," to whose knowledge we must appeal in the present inquiry, is the Legislature, for we are seeking its intention in its enactment upon the subject of the creation of a funded debt by a county. The Legislature has especially authorized counties to borrow money in advance of tax for payment of the costs of construction of certain public improvements and the issuing of bonds in APP. DIV.-VOL. XXXI. 77 SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. payment of the loan. Wherever a funded debt is to be created under the section headed "Funded Debt," the Legislature has declared that the resolution ordering it must be passed by a twothirds vote of the members elected to the board of supervisors, or the question must be submitted to, and approved by, the electors of the county, and in this case there has been neither a two-thirds vote nor an approval by the electors. As the subject of the resolution in question seems to fall within the provision above referred to, I am of the opinion that the debt falls within the class of funded debts, and requires the vote of two-thirds of all the members of the board of supervisors. It follows that the resolution of the board of supervisors directing the issue of the bonds in question was invalid, and we direct judg ment in accordance with the demand of the defendant, that the resolution of the board of supervisors directing the issue of county bonds to the amount of $64,978 is invalid. All concurred. Judgment for defendant on agreed statement of facts. 31 810 157a 89 In the Matter of the Application of JOHN GRAB for the Appointment of Commissioners to Ascertain and Determine the Amount of Compensation to which Applicant is Entitled as Owner of Certain Real Estate in the Village of New Rochelle, an Incorporated Village, Pursuant to Law, by Reason of the Change of Grades of Certain Streets in said Village. THE VILLAGE OF NEW ROCHELLE, Appellant; JOHN GRAB, Respondent. Village Act, chapter 414, Laws of 1897 — it applies to the grading of streets in the village of New Rochelle-claimants for damages need not all unite in one proceeding. The charter of the village of New Rochelle contains no specific authority to regrade streets, and an application for the appointment of commissioners to determine the amount of compensation to which the applicant is entitled by reason of the change of the grade of certain streets in that village, is properly made under the provisions of section 159 of the Village Act (Chap. 414, Laws of 1897). App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. There is no requirement that all persons who are aggrieved by the change of grade of a village street shall unite in one proceeding to determine the amount of their damages, respectively. APPEAL by The Village of New Rochelle from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of May, 1898, appointing commissioners to determine the amount of compensation to which the applicant is entitled by reason of a change of the grade of certain streets in New Rochelle. J. Addison Young, for the appellant. Michael J. Tierney, for the respondent. GOODRICH, P. J.: The applicant is the owner of a lot, 100 feet by 113 feet, 6 inches, situated on the corner of Union avenue and Second street, in the village of New Rochelle. The premises are occupied by the applicant as a residence and hotel. The streets named have been opened, graded and traveled by the public for many years. In 1897, without the consent of the applicant, the village altered the grade of both streets in front of his property by lowering the same so as to cause damage to his premises. He brings this proceeding to ascertain the amount of such damages, under section 159 of the "Village Act" (Chap. 414, Laws of 1897). The village opposes the application on the ground that such proceedings can be taken only under the provisions contained in the special act incorporating the village (Chap. 249, Laws of 1864, as amended by chap. 56, Laws of 1890). The court made an order appointing commissioners, and from this order. this appeal is taken. The real question involved is whether the proceedings must be taken under the charter of the village or under "The Village Law.” Section 159 of "The Village Law" is a substantial re-enactment and incorporation into "The Village Law" of chapter 113 of the Laws of 1883, where, for the first time in the legislation of this State, special proceedings were provided for summarily estimating the damages occasioned to abutting property owners by the changing or altering of the grade of a street in an incorporated village. This |