The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-04

ties themselves, who are men Of high TssPectabih,
and Of Ssi osr Ssrs S.d:
faith and for Il. Rospssss therein
r one .eeS,tv ths hui performance Of their
agreement Surely this is enough to oountervail
any number Of allegations founded on mere suspicion
which was accepted and the which rejected
the question Is not the defendants seem to suppose
the n antees But even II it were it seems from their
showing, that they have received or will ceve
full equivalent in value for the ourhsns which they
thus disnterestedly assumed The true question is
what of benefit might have accrued to the city
in that the most advantageous ons made had been
aeeepteds And in this point Of view there other
conclusion than that the Corporation has shown entire
disregard Of the public interest and Of its duties
it had accepted the Offers which it refused the burheu
the payers would have been reduced to the
extent to which the public treasury would have been ben
Gifted But II was said upon the argument that the
they had the right make the grant, they had the right
to be paid for it. The power OF granting thing i'm
plies the right to attach condition. 70 the grant, and
mmateria whether the granor be corporation or an
individual. One Of the given the argument
why the Corporation could not receive compensation
that 1t had been deemed necessary 70 apply to the
Legislature for express authority to license hackney
coaches. But there is no analogy between the two
cases. The act Of 1913 gives to the Corporation the
power and authority TO regulate hackney coaches OF
carriages and the and drivers thereof and their
Of fare carriage requiring the of such
hackney coaches carriages to have license from the
Mayor Of the city, under the direction of the Common
Council And it further provides. that whoever shall
obtain such license shall therefor sum not exceed
ing Eve dollars for each hackney coach carriage to be
1918, p 44e) This act, it viii be SEEM merely gives
power to make police regulation, accompanied with
power levy tax upon certain species Of property for
particular purpose It neither gives does profess
property granted, or for the granting Of any right
which the city already tho power to grant
The conclusions to which have arrived fer the rca
which have been stated are, that the corporation
in making the grant in question guilty Of clear
breach Of trust and that this court bound to prevent
the grant thus illegally made from being carried
into effect The next question to be considered is
whether the suit has been brought by the proper parties
1t held at general term Of this court in the
OF Christopher vs.. The Mayor, &c Of the City of New
York and al that tax payer in the city might restrain
the Corporation, and the parties claiming under them
from doing act which amounted to breach of trust
and which injurious to the party as tax payer.
The rule OF the common law, established In
by corporation which not particularly injurious to
any individual corporator corporaters it
~ for the parties who felt aggrieved to relate their
thought the a proper one ale his information
against the corporation In such the suit would
be brought in the of the Attorney General the
relation Of the parties complaining instead Of being
brought in the Of the parties themselves But
in England has been held that although the proceeding
must be by the Attorney General in where all par
ties interested parties to the abuse yet that where
such Lot the case it was not that he should
think that the plaintiffs in this case being tax payers
TO large amount have such interest in preventing
the grant in question from being carried into effect that
they had right to institute this suit in their names
and am Of opinion that injunction should be issued
against the defendants in Of the prayer of the
complaint.
Judge Edwards then said that Judge Strong one of his
associates who heard the argument not able to be
present. but had requested him to state that
with the decision just delivered He Judge Strong)
WILL at future and not distant day reduce his opinion
TO writing.
SUBSTANCE OF THE DISSENTING OPINION OF JUDGE
NORRIS.
! agree with my brethren up to q certain point. We
all agree that the Common Council have authori to
horixe the laying Of railways in the streets of the city
that previous act Of the Legislature for that purpose is
O Is nGt w
in this particular But divide upon the point
whether the exercise Of this power the corporation is
trust Ny brethren think that in acting in this case
the corporation is disposing Of its private property
power And in assigning reasons my conclusions
will first consider the second point presented by the
plaintiffs That point Is this, that
Superior illegal and criminal act which could
consider this point first only for the that
the decision Of 1t in favor Of te plaintiffs will deternne
this cause and require that the injunction should be
upon this point is Of more importance to the we'll
being Of this city, and to citizens collectively and
individually thar would be the benefit or injury to
them Of any railway in Broadway in any other street
of the city. In this connection, present series ct
the legislator. Of the city Of New York, passed the fol-
resolved, That Jasob sharp Freeman Campbell and
Others who are named in the and
ali Of whom herein the
70 @
NINTH shs se 1S
time to time al9ng the Bloominsdalo road to
the said grant Of pennington and authority being and
with tie following conditions and stipulations, to wit
Here follows fifteen tpuatons which, for the purpose
Of the point nov under consideration it is unnecessary
also passed by the Board Of Assistant Aldermen and d.
reced to be to the Mayor for his consideration On
with his objections to the Board Aldermen where it orr
ginated The effect of this veto Of the Mayor was that
the resolution before the 10Th day Of December 1852 On
the day Of December Judge Campbell of the Superior
Court upon pare application made to him by Thos
F. Davies and CORTLAND Palmer granted injunction
against the Mayor Aldermen and Commonalty of the city
Of New York, in which is the following clause
Do hereby command and strictly snOi1 the
York. their councillors atornies solicitors and agents.
desist and refrain from granting in any
or re s or any 0hE re- or
Brs.sway city New York from the south ferry
BroadSay breaking removing the p.vements
establishing any rarosd therein until further order
this court.
And that the show the Special Term
Of this be held ut the City Hail. in the city Of New
York. the second Monday of January 1863 the opening
that day, thereafter
heard why this Injunction order should
permanent.
There are some considerations connected with this in
junction necessary to be here stated 1st 1t not only
prevents the Mayor, Aldermen and Commonalty giving
the permission to the persons named in the resolution
upon the terms specified therein and the tpuations
tached but absolutely prevents the Mayor Aldermen and
Commonalty from giving permission to any person per
sons upon any terms, to lay rail track in Broadway
With this injunction upon them, III it is legal they
could not give the permission to the other gentlemen
mentioned in these proceedings who offer such favorable
terms to the tax payers and citizens Again. the order
show returnabe the second Monday Of January
1S53-which was the 9th day of January-beng severa
days after the expiration Of the term Of Office Of the Their
Mayor and Common Council and within which they coult
act on the subject. The consequence Of this injunction
Gf egal) would be to postpone the consideration of thu
resolution until those who could act upon il, If they de-
sired to do so, out of Office and when the parties
appeared to show although the court might decide
that the corporation had perfect right and that it
their duty, to pass the resolutions till the court woul
have no more power to restore the resolution, OF
to repair the injury caused by the act Of their
ciate, than they have to resussitate the dead