The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-05-17

been made to conform to the present plan: In this
the Corporation could have discontinued the pro-
the same period against the will Of the Corporation
the proceeding could be eaectually stayed by
oty OF interested expressing their dissent to the
report Thus the character Of 6xedness aud permanency
which given by the statute the flirs OF
the map Of the streets in the upper part Of the city
and in the Brooklyn cases. does not exist streets
the lower part Of the city until the report confirmed
The restriction to the Of the site of the streets
the upper part has the authority Of statute the su
preme law of the land and Is founded on an indirect
compensation The attempted restriction in the lower
part Of the city has such high authority statute
to support it has not resolution Of the Corpo
ration to prohibit the Of the Site and founded
no consideration direct indirect 1t not surprising
that natural sense Of justice led two of the Commits
sioners to revolt at the idea of subecing to
such injustice and that they yielded only account of
the advice of the counsel In the OF the Corpora
ton OF New York vs. Mapes, % J.C r. 49, Chancellor
Kent refused to grant injunction to prevent Mapes
from building lands proposed to be taken by resou
ton of the Corporation on ground that no right
vested until the report Of the Commissioners should be
confirmed and he said, the plaintiffs may perhaps
have to pay for the value Of the buildings erecting
by the defendant" This is all the inconvenience loss
that the plaintiffs sustain, and would 1t not be dam
mum abs que injurid 1t is loss which the Court
reference with the enjoyment of private right As the
case stands the plaintiffs have shown right title,
nor any equity which can be ground for Injunction
ants in the usual and ordinary enjoyment and
improvement Of property TO which it is assumed
they Rave absolute title. 0bid PIP. so, SID
1t said that this proceeding IN rem, and
that the appointment of commissioners operatH like
notice Of lis pendens The analogy would not favor the
appellants. IT, in suit to forecose mortgage notice
OF he endens be filed it does not prevent the mortgagor
from going to improve his property By erecting bnild
ngs, is he under any penalty (ke that assumed in
this cae that il the lands be taken from him by sale
he shall be allowed nothing for the new buildings Nor
does the commencement OF foreclosure converse com
Jel the mortgage when the lands sold if he buys
them TO pay for improvements which the lands
when the action was commenced but which have since
been bur ned down otherwise destroyed The lis pen
ds does not prevent parties from exercising rights
which they had before suit brought The Court may In
peculiar circumstances far anticipate the Judgment
as TO interrupt those rights but this is by special order
only 1t seems to be understood that the Corporation
have no desire to continue the proceedings unless the
bank shall be compelled 60 without compensation
the building. That makes it unnecessary to inquire
whether the Commissioners proceedings are void, as
contrary to the resolution Of the Common Council Ii
the Corporation had such DESIRE it might be necessary
to 80 into this last inquiry Also then the proceedings
would go back to the Commissioners to correct