The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07


Broadway-irom the inconvenience and discomforts
it would create to citizens generally and its special
injury to the inhabitants-would be a public nui-
sance. To prevent the creation of O nuisance no
matter by whom created is not only within the lrs-
dicton of the Court but, upon proper allegation in
complaint its positive duty. The mode Of relief is
an injunction.
A. 1t may be that the Common Council intended,
from motives Of partiaty corruption to make the
grant to Jacob Sharp and his associates upon terms
far less beneficial than could certainly have been
obtained from others, thus, defraudng the treasury
of the city and imposing heavy and unnecessary
burthen upon its tax-paying inhabitants. In such
case to issue an injunction forbiddng the grant,
Is not to interfere with legal discretion, but to pre-
vent fagrant breach OF trust and the completion
of an extensive fraud. have already said that, in
the question before it is quite immaterial whether
all or any of these grounds of jurisdiction and relief
are alleged in the complaint but it so happens that
tincty and fully alleged that the Judge who issued the
order Of injunction would have failed in his duty
had he refused to grant it. Upon such complaint
he had no liberty of refusal It is possible, as the
counsel for the defendants have insisted that all the
material allegations in the complaint are groundless
in law or in fact and that hereafter we may ourselves
be satisfied that they are SO, but shall not now
50 express or intimate any. opinion upon questions
that can only be properly discussed and considered
upon motion to dissolve the injounction or upon
the final hearing The conclusion at which have
arrived, and which necessarily follows from the
observations that have made is that the order of
obey, was valid exercise Of the established iurs-
dicton Of this Court, and consequently that ade
quate cause has been shown why an attachment
should, not issue against him for the contempt, Of
which from the papers before u.s. he appears to have
been guilty In this conclusion all the judges who
assisted mc-by each of whom separately all the
questions in the case have been carefully
examined-entirely concur. The motion for
an attachment is therefore granted.
when he had finished reading his opinion, Judge
Duer made in subtance the following remarks =
1t may. be thought a singular omission in the
opinion have delivered, that have forborne from
those comments upon the proceedings Of the Board
OF Aldermen, and upon the resolution moved by Mr.
Alderman Surtevant and especially the injustice and
the attack which they contain upon the con-
duct and motives Of Mr.. Justice Campbell which thew
would seem not merely to justify but demand. Per.
haps, hereafter the necessity Of making such remarks
may be imposed upon US; but at present / shall
content myself with adopting, with some slight
changes, as strkngly applicable, the language Of
late colleague, Judge alike distinguished by the
moderation OF his temper, the purity of his charac
ter, and the soundness Of his Judgment In the case
OF Cnpet vs.. Parker, g Sanot., p. G62) in which
defendant had disobeyed an injunction under the
advice of his counsel that II was illegal Mr. Justice
Mason said g" We live under government Of law