The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-12-28

difhcult AID expensive, II mot impossible, 10 sst
asids rid sale and ccnveyaneea, and restore the
raid property to the said fund, from which II ID ~
tempted improperly to separate the same.
Wherefore. this pls,ntif prsys that the said de-
PENDANTS, end each and every OF thsm, their
officers, agents and servants, may be temporarily
and perpeTuslly esjoined and restrained, by the
order and Judgment Of this court, from selling or
Offering to sell dispose Of the said property as
aore said advertised for sale, viz The said certain
lots hereinafter set forth, and tho said wharves,
piers, and bulkheads, each and every OF them, and
nom executing delivering any decd or conveyance
OF tho same or any part thereof, to any person or
have such further other order or relief - to the
court may seem proper
SwEEsY & ANDERSON, Pitts Atty.
City and County Of Nov York, a.-william s.
Martin, the plaintiff above named, being duly
sworn, says that he has heard the foregoing COM
plant read, and knows the contents thereof-that
the Same 10 true of his knowledge, except as to
matters therein stated on information and belief,
and as to such matters he believes it to be true.
Sworn this 2sd day Of December, 1852, before me,
A. A. DENMAN, Alderman Sixteenth Ward
City and County of New York, 90 -Peter B.
Swesny, one of the attornes for the plaintiff in the
above action, being duly sworn, saith that he has
in the annexed complaint, for the purpose Of draft
ing said complaint, and from such examination
states, upon Information and belief that the said
acts and proceedings therein specified are truly set
forth in said complaint, and the facts therein stated
are true, and further saith not.
Sworn before mo, this Gath day q December E.
DECISION OF JUDGE HMMEr.
After clear and succnct review Of the case, the
Judge decides as follows -
On this complaint, application was made TO me
on the morning of the oath December instant, for
piers. and bulkheads which sale was to take place
at twelve O'Clock of the Same day. As an order to
show cause, oven instantU, would have been nuga-
tory to stop the sale, the Injunction was granted,
9th and an application was immediately made
by the counsel to the Corporation on behalf OF the
defendsns, to vacate or modify the injunction, 30
~ to allow the sale to proceed, on which appllcs
fully heard. and have felt 1T incumbent on me,
under the circumstances to decide upon it without
delay.
The case presents the following points,
lst- Did tho act of June Sth, 1872, "tO regulate
the frances Of the city of New York; create any
pledge or quasi mortgage of the city property for
the redemption and payment of its debt, which
could prevent the corporation from selling and dis
posing of il as they might think expedient!
On this point, / AN satisfied that no such pledge
or mortgage was created The terms Of the ninth
section are that the faith of the Mayor. Aldermen,
and Commonalty, shall be pledged for the final re-
denption and payment OF the stock
This, at most, created what may be termed
statutory bond, and in 70 wi,e impaired the right
Of the corporation to dispose of any property be.
longing to the city 1t had nothing OF the charac-
ter Of lien on any such property.
The revenues of che corpor alton were pledged and
appropriated by this section for the pay ment OF the
interest the stock; but the sources OF such reve
rue, and the manner IN which the ely property
- - IN
respect limited or affected by it, could any lien
have been created the revenue by being so
pledged and appropriated for the payment OF the
interest. That necessarily amounted to nothing
revenue should be faithfully SO appropriated
I'd Were the provisions Of the ordinance OF I'D
February 1884, authorizing sales Of the property OF
the Corporation valid!
sufficiently answers this The Corporation we're un-
der no leg disability to sell any of the city proper
ty whenever it should be deemed expsdient, and
they bada right to provide for so doing by this
ordinance.
3D. Was the provisions in the act Of May 18th,
lS45, that tho ordinance Of 22d February, 1874,
should remain in full force until the whole OF the
debt created for the introduction OF the crotoa
water into the city of New York should be FULLY re-
deemed, imperative and void
The chief object in applying for the act was to
obtain Legislative authority to raise money ny 10 an
for the pense Of introducing tho CIoton water and
to create stock for that purpose Inc 9TH SO ;tion,
which contains the provision in question WAS wholly
unnecessary to confer the power OF borrowing tue
NOR cy and ere atng the stock, and would seem to
have been voluntary abandonment by the Corpora
ion Of their right to in regard TO- the city
debt, for period which might extend forty five
years; and whether this was done to give q more
favorable impression of the measure to the Lsgs
liture, or to throw round the obligation Of faith.
fully redeeming the city debt the additional
iapction of State Legislation, do not hest
tate to say that, in SO far kas this provision
meant or was intended to deprive any future Com
mon Council Of the power to alter or modify, or
even repeal that ordinance, or any future Legislature
Of the right to permit any such alteration. moddca
tion or repeal, it was imperative and void, aud
that practically, it has been so treated by the Lee
gislatuIe and the Common Council Of this city.
4th-Did the provisions Of the amended charter,
which took effect in ls49, abrogate and annul any,
and what, provision of the SAID ordinance
The first section Of this charter vests the whole
legislative power Of the Corporation in tho Board
Of Aldermen and the Board Of Assistant Aldermen,
and provides that those boards together shall form
the Common Council Of the city.
The eleventh section creates an executive depart
ment, denomipated the Department Of Finance,
and provides that it shall have control OF all the
6scal Of the Corporations ALSO that IL shall
settle and adjust all claims whatsoever by the Cor
poration, or against them, and all accounts what
soeyer, in which the Corporation is concerned,
either os debtor or creditor.
IL makes the Comptroller the chief ohicer OF Inc
department. 1t creates bureau for the collection
oftaxss and provides for receiver Of taxes" as
the chief officer Of such bureau
1t creates another bureau for the collection Of the
revenue arising from rents, and interest on bonds
ana mort gsges, and for the performance OF such
other Duties as may be directed by the Common
Council, and provides for collector of tho
city revenue" % the chief officer of that bureau;
and it creates q bureau for the reception OF all
monies paid into the treasury of the city, and for
the pay nent Of monies therefrom on the warrant
drawn by the Comptroller and countersigned BY
the Mayor and Clerk Of the Common Council. and
previ les that tho Chamberlain of the city Of New
York shall be the chief officer Of that bureau.
In this organization of the finance department,
with the con rol Of ell the fiscal concerns Of the city,
no mention of the Commissioner of the sinking fund
is made is there any reference to such officers
in any part of the charter The terms in which this
finance department is constructed the creation ofis
distinct bureaus and the designation Of its several
officers with their titles Of off and prescribed du
ties would seem to exclude the existence of any