The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-16
The Russ Pavement In the Bswery.

The Russ Pavement In the Beverly.
.~y>~~~~~o~~~~~~~~~~~>~
Important Opinions OF Judges Mitchell and
6erris ON tho Legality OF the Contract.
SUPREME OoCKT-GESRRAL TERN.
~ Basn d 7hisae, opyeions ~ he Mayor Aldermen and
0Dn.enely q ne oay Veg rort Ba,thol n','O Ps1dy
oszuox MAJORITY on COURT DELIVERED by JUDGE
MITCHELL.
OCr. 10.-BY TIE COURT first question In: can
person owning real estate in the city Of New York and
paying taxes on II, prosecute against the
poIation on behalf Of himself other tax paying c
sss BY taxation in repairing and p.y ns IN
manner contrary TO express Law and tending to add
- the taxes of the citizens?
eass where the corporation was about appropriate the
moneys OF the city contrary Law In Kirby add others
aimed BY tax payers the corporstios being pur
chase ground for Of burial out OF the city In
ritophsr vs. the Mayor s Barb. Ss. .ns question s;ao
IN favor Of the right Of the tax payer to sue se foot Of
p. 5') The Judge who gave dissenting opinion in
that nothing that question, but he regards
the decision Of the Court As Authority until reversed.
In Nhau Sharp (the Broadway railroad cass.) and
in stuyvesast Issrsall hs Second railroad
800 the same question again presented ct General
Term, and with the same results.
The counsel for the defendants in this argued this
question in ChriStophsrs and his dstingu shed as
eCcste that question Of the main points of hi,
Argument. The question had, therefore, been fairly
fore discussed in this The previous deci.
sons should therefore be sdope usve until re-
vsrfsd 1t is supposed that the Court in the above
eases overlooked the proceedings in the Revised
Statutes ~ to proceedings against Corporations
IN Equity" Revised Statutes, 4e2 Before that statute
passed Chancellor Kent decided tina; sn Injunction
did not lie at the suit Of the Attorney General to
an Insurance. company doing banking business that this
attempt to exc ed its chartered public Of
0nce, over which chancery had Jurisdiction, and
70 DO met by the remedy provided in courts Of law BY
ao Warranto or on iDformston (Attorney General vs.
made broad distinction between that ca aud the case
Of private injury He said IF the directors Of the Utica
Insurance Company were to appropriate the funds or
capitsl Of the company to their private smoument,
IT, dsreearding the business of they
to direct the funds to the etrueon Of that object by
making roads and canals building theatres churches
Rave NO doubt this court would have q right and
would be bound to interfere and check tbs abuse
But when the que iion is whether Dor alton has
broken a penal wv, the wildly of rent; this
court IA not the proper tribunal to sustain
tor or to innict the a. 3ss There is no
sint the part of the stockholders of misconduct
IL the information founded anything If that kind
a. 500 Did not tn. Coancsor by this that there
any violation Of the charter corpo
rstors they the proper parties tn mplan and
might proceed by Djt notion ?opt If the act complained
Of affecting inurousy only the people in their
sOvsriqDVas by usurpati0n of franchise granted
hy tbs pecplethere the Attorney General of
the proper complainant but MS remedy ample at
NV, and was therefore there only The Iegislatu .,
after this, deemiDg the remedy at law tedious,
and the more summsry proceeding by INJUNCTION
necessary, gave, by the Revived Statutes power the
Attorney General, even in of the usurpation
II franchise right to sue in cbancery The giving Of
Mis- addition right to the Attorney General not
intended to take away any rights which private ndiyi
duas had before erjos ed
Accordingly private individual may stu obtain an
injunction 70 prevent company in which he il corpo
rsr Icm using lis funds for purposes unauthorized by
its chartertha is an iojury to his private rights Ii he
has this right ia of pyats corporation the part
Of the Rssed Statutes fs red to did not 10 any case
which provided FOR confer the exclusive right "a
Ne ATTORNEY General but left all corporations, whether
public or private corpo who hefor- had right to
sue the right In full force. Without the at the
Attorney General could not in chancery and the act
Va. pass ed simply TO cure that defect.
This court having repeatedly held that tsxpa, has
such interest in the raised and to be raised by
the city. that he may prosecute such action where
the corporation is commit ng such violation of its
charter a. viii ada to the burthen OF the taxpayers and
the statute referred to not taking away individual
rights but merely giving an additional remedy the right
Of the taxpayers to must b. sustained TIL injury
dane In this city BY excessive aton unauthorized by
law IL private injury In which the taxpayers of the
city the individual tufrers rather than the public
Ihs people our Of ths city bear no part Of the burhen
and the people within the city, thu also
bear no part Of it. Is therefore, injury peculiar to
enc body of men-ths taxpayers of the city.
The second question whether the corporation could
make contract without advertising for proposals. and
giving it TO the lowest bidder This decided In the
in the case Of Christopher sna the Judge sho
the decision OF the court whatever may have been his
ndividsal opsion.
There two points being against the defendant tho in
junction should be sned and the order appealed
nom reversed, without costs.
JUDGE MoRRls's OPINION.
On appeal to the General Term, from order of the
Special Term, crying plaintiffs motion for permanent
injunction, echagng the order to show cause and
sofviDg the temporary injunction order granted by Jur
ce At chambes and ordering that the defendants be ut
Rbery to act IN all respects said mi auction order
bad not been uade,the facts stated In the paint
and not refuted the Defendants are the folio wing:
The plaintiffs inhabitants of the city of New York.
and own therein large amount of real aud personal
estate which subject to be assessed fer
M nj rnnn Of c;t.a
OF paving the streets mentioned in the resolution
Get forth in the dinss On the 9th day of De-
The " Mayor Aldermen and CommonAlty Of the city
Of New York." adopted . resolu ion authorizing the
Commissioner Of Repairs and Supplies to ents into
10 pave Park row, Chatham street the Bowery. and
ya Of the Fourth with tho Russ pavement con-
saing tpec acation of he work to be done and the
dollars paid the arst year. and stpu.tins that Russ
81. Keno were to haze the old ravig stones &C. o. the
Soard OF and sent to the Mayor for his action
q tss 9Th Of Nay 1862 thu Mayor returned the reaou
men where it originated. On the Goth of May 1884, the
Doa5d Of Assistant Aldermen resonsdered and adopted
And sent it to the b. I'd Of Aldermen for hr ssoD
On the zlst of May. 1863 while the resolution was pend
ing h the Board Of Aldermen for their legislative action
NE Plaintiffs as inhabitants and Of property and
x payers Of the city Of New York. for their benefit
~ vel in behalf Of all the of property and
TAI payers in ssd city, instituted this sui and Ia &C
sordance With the payer of their com obtained
from Justice OF this Court injunction order restrain
ing "The Mayor Aldermen and Commonaity of the city
ffsw York" from attempting to permit direct suf-
sr the defer BartholoG purdy Commissions Of
REPAIRS and suppnes,) enteIine into, making,
cutting con,Iac with Ruos Reid &c a. specified In
he resolution then pending before the Board OF Alder
men, and commanding the said 1.-The Mayor, Aldermen
aud Commonalty of the City Of New York aad the said
bartholomew Purdy" Commissioner Of Repairs aud
supplies, 10 abs ain and refrain, from entering into,
sgnDg executing, receiving, attempting to enter
to sgn execute, receive the contract mentioned
The said aiot and in the said luton therein
ontsiped " any like similar contract land from
carrying attempting to carry into effect the said
Mtion" then pending before the Board Of Aldermen
Dor their legislative coDsds ration and action The only
means by which 'ths mayor, Alder aud Commonai.
y" csD attempt 10 permit authorize" Of their
o1sorc ates to perform act themselves at-
tempt to auborise contract" to be made is by men,
eers OF tie Common Council at meeting of one Of toe
soards in then ieesate capacity advocating voting
Tor resou ton ordinance directing or authofising
the performance OF the act Therefore the injunction
der granted BY the Justice ut Chambers which dis
soised BY the special term and the injunction which
mis- sppe.l seeks 10 restore, would, at authorised by