The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-17

JAN. l5.-Thomas Z. Darts and Cortland Palmer rs.
The Mayor, Aldermen and Commonahy Of the City Of
Nac Ymk-The argument in this case was commenced
to-day was TO show cause why injunction issued
against the defendants should not be made per-
petual The injunction restrained them from grant
ing to, or in any manner authorizing Jacob Sharp
ana others, or their associates, any other per-
son or persons whomsoever, the right, liberty
or privilege of laying double or any track for a
railroad in the street known Broadway said city of
New York from the South ferry to Fftyseventh street
any railroad Whatsoever in said Broadway and from
breaking or removing the pavement in said street. or i'm
any other manner oestrucns said street preparatory to
or Tor the purpose OF laying establishing railroad
therein until the further order Of this Court in the pre-
misses.
junction. the defendants passed resolutions granting the
privilege OF laying railroad in Broadway and an order
was en issued for them to show why attach
ment should not be issued against them for contempt Of
Court in dsobcyng the injunction issued and served on
each of them in this action
The array Of counsel each side Is the greatest we
have for time and includes of the most
profound lawyers of the New York bar.
The plaintiffs are represented by Chief Justice Bron
son. Messrs. George Wood John Van Buren, j. W. Gerard
Henry Hilton, Jas. r. Whiting, and VIM. McMurray.
For the defendants, Messrs. r. J. Dillon Corporation
Counsel exChief Justice Jones' Hon f. b. Cutting d. d.
Field and Edward Sandford
The opened by Mr. Van Buren, counsel for the
plaintiffs, who read the complaint.
Mr. Field, in opposition to that, offered the aidays of
all the grantees.
Mr.. Van Buren, then submitted the following points
to the Court on behalf of the plaintiffs, and cited va
rlous authorities in support of his cases.
1.-The Court had jurisdiction over the parties and
the subject matter of the complaint and having m
risdicon the question whether the order for nunc
ton made upon proper and sufficient grounds does
not arise upon this motion
% Tho Court has jurisdiction over corporations as well
Us over natural persons.
(2) The plaintiffs complained that an injury was about
to be done to their legal rights by wrongful act Of
PENDANTS and prayed that defendants might be restrained
Nothing further necessary to give urisdction and
then for the Court to judge and decide whether
proper case was made for granting the relief which the
plaintiffs asked. And when court has jurisdiction its
Judgment or order is void however erroneous
may DO.
(3) The resolution which the Common Council was
about to pass was in no proper sense of the term act
OF legislation. 1t not law but contract 1t was
what the Common Council itself called grant.
But If it material to consider whether it was law
or grant, that was question upon which the Court
TO judge and It erred in judgment still its order was
valid until it should BIO reversed or vacated.
(4) II the resolution which the Common Council was
about to pass may properly be regarded act of l
gsaion It was st question for the Court to decide
whether relief might not be granted against injury at
tempted to be done in that form and whether the udg
ment was right or wrong, it was not void
(5) We shall contend at the proper time that there il
no color for the protence set up by the Common Council
that the power to make by laws and ordinances for the
government of the Corporation ana inhabitants of the
city stands on the same footing the legislation Of the
State or that of Congress- and that in such matters
they above and beyond the reach of the judiciary
controlled when is about to do injury to third per-
sons although the wrongful act may take the form Of
thing which the Common Council proposes TO do though
in the form Of law is in truth grant Of the property
or privileges Of the city
But it is enough for the present to say that whether it
was proper to enjon the corporation in this
question for the Court TO decide and whether its udg
ment was right or wrong it valid until reversed
2.-so long as an injunction remains in force it must
be obeyed, although it may have been enormously
3-The injunction to restrain the making of the grant
was properly addressed to the Corporation and when
Official member Of the corporate body.
4-There was breach of the injunction by every
member of the Corporation who after the service Of the
order, voted to make the grant.
Every such member acted in direct contempt of the au
thory Of the Court and the commandment Of the law
6-When any one acts in an official character in disre
gardng an injunction order Of the Court it is not the
OFFICER but the individual who is punished for the
tempt
Court and its that has happened in modern times
and if it is not followed by exemplary punishment it
will be impossible to maintain the administration Of JUS
tice in future.
Ex-Chief Justice Bronson said--We have carefully
abstaned in this matter following the direction of
the Court from discussing the merits of this question:
and therefore we do not suppose that they come
necessarily into the consideration Of the contempt
In one aspect however they do and that is whether
the Common Council have the jurisdiction to grant
monopoly; and | will apprise the counsel what
shall endeavor to enforce in reply, which is this
That case was made for the Court to Judge upon
several matters-to judge whether it was fit and
proper to interfere by Injunction and that their udg
ment is valid There is one point in the case not
mentioned, which is the question of adjournment
made by them, and that by the iregularity of such
adjournment of the Board they therefore could not
act upon it. The Judge was to Judge of that matter
whether we were right or wrong, and whether this
Board could come together as legal assembly, and
say whether they could grant exclusive privileges
because all these bylaws are questions whether they
are reasonable not. 1t was for the Judge granting
this injunction to judge Of these matters and say
whether it was legal act Of legislation upon the
case presented to him.
Mr. d. d. Field, who appeared for Alderman Stur
tevant submitted to the Court the following propo
sitons list, That the injunction, whatever might
be its construction and whether the Court had uris
dicton not to grant it, was imperative as against
the members OF the Common Council, because they
not parties to the action. ID That it was like
wise imperative as to the members of the Common
Council, because they were not served with the af
fidavits upon which the injunction was granted,
which was necessary ingredient in making them
guilty Of contempt in violating it, Sd, That if the
Injunction be imperative as to the individual MEM
beers of the Common Council, it did not, in terms, Or
by fair construction, prohibit them from voting upon
the question. 4th, That il from its terms it did
prohibit them from voting upon that question, it
beyond the jurisdiction OF the Court, and was void.
In reference to the first point this preliminary and
temporary provisional Injunction could never go be-
yuHu CC uhol ihyuiOtoH BIuHtcu Ny Vic JHN1ulciH,
and it was fundamental rule, that the Judgment OF
the Court could never go beyond the parties to the
suit These persons are not parties to the action,
and therefore cannot be affected by it. In ii Page
?4l. was case in which an attachment was issued
against party 10 suit for not producing papers in
suit and the Lord Chancellor laid it down, that he
could not be attached inasmuch as he was not party
to the suit.
Mr. Van Buren-Was he not an agent?
Mr.. Feld--Whether he be agent, solicitor or not,
nobody can be affected except he be nominated
party to the action; and there has been
in court of equity in which an injunction has been
enforced against person not party under any cir
cumstances whatever. The strongest case in favor
Of this argument was in Coopers Chancery Cases, II
Agar vs.. the Regents Canal Company. In respect
to the second proposition, that this Injunction is in
operative because it was not accompanied by the al
fdavit on which ii was granted, the law is most ex
plicit The old notion used to be- that if party
were in court heard the order made he would be
in contempt if he violated that injunction, even il it
not served upon him; but it must be served
upon him, together with the affidavit upon which it
was granted, that he may know the grounds of de
- 1. ,.ls