The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-05

lant-The defendant received s45 advance money for
three seamen, and signed an agreement TO the eject
that IL they did not go to sea in certain vessel ne
1.-THE detendant) would refund to the plaintiff the ad-
vance money. They went board the vessel but left
shortly after as alleged In consequence OF mcx-
ness.
Opening OF Fourth Avenue.
SUPREME CoURr-MAY GENERAL TERN.
Before Chief Justice Mitchell and Justices Roosevelt and
Clerke.
In January, 1858, a Judgment was entered in the
Court of Common Pleas of New York city, ordering
the plaintiffs in that suit to convey by deeds to the
defendants respectively, certain property described
in the judgment. The judgment was divided into
ten sections, each section relating to . separate
portion of land. The eighth section related to lot
of land lying between Third and Fourth avenues,
and between Ninty-nnth and lolst streets. The
tenth section Of this judgment contained . clause
declaring that Fourth avenue as herein useds
should be taken at the width Of one hundred feet,
as originally laid out" In accordance with this
part Of this property to one Clarke. That con-
yeyance, however, made no reference to any judg-
ment, nor did it strictly conform to tho Judgment.
The judgment vast that he conveyed lands bounded
by the Third and Fourth avenues east and west,
and by Ninety.ninth and l0lst streets, north and
south. The conveyance by McGown granted
absolute right to Tooth street, as would have been
required by the judgment, nor was il strictly
but conveyed the lots In fee simple, with full war.
ranty, together with all the grantors right in the
avenues and streets. The Commissioners of ASSESS
mcnts, in laying out Fourth avenue took part Of
this property belonging to Clarke, allowing him
merely nominal damages The report of the Com
missinners affirmed at special term and ON APP
peal was taken. The opinion Of the court was rem
dered by his Honor Judge MITCHELL and was in eff
feet as folows:-t is evideat that the parties did
not mean to follow the Judgment and it would be
an impluGcnt rule to allow judgmenttO control
deed between the absolute owner Of land and the
purchaser from him, when the deed contains refer
ence to the Judgment The deed being made s1bse-
quent to Judgment, it is not improbable that the
change may have been purposeiy made, because the
parties concluded that the deed as changed would
hest carry out the contract between them. For
as between the buyer and seller, the judgment is q
contract; the deed mcrges that contract. What
then did the parties mean to convey by this deed
The doctrine has become very familiar that con-
| veyancc Of lands in that part Of the city where
these lands lay, bounding them BY any avenue or
street. vas dedication OF half that street er avenue,
only, upon the opening Of the street
With the knowledge Of this rule the parties made
this Conveyance, in which the lands are thus bound
land within the block and the grantors right in the
streets or avenues. The deed conveyed an unin-
numbered title to the former and only the grantor
right to the latter. This right not an absolute
ownership, but only the right which remained to
| the grantor, alter the dedication. The infer
ence is, that the release to Clark of the right
to the streets was not intended to affect tho
deed, SO far as TO prevent. dedication to
! the nublic. which the law implies, from the other
| words used in the deed. 1t was contended thaA tina
| COMMISSIONER report was invalid, because CONTRA
~ to the constitution Of 1867, which says that
the compensation is to be ascertained "by not less
than three Commissioners, appointed by Court OF
| Record It was however, a familiar principle OF
law, well known to the trainers Of our constitutions
and is specially laid down in our Revised Statuts
e r. s., $685. sec. 27) that when any power b. Suty
= conferred upon two or more persons, it may be
- by majority Of such persons, upon q
meeting ola. .he damages are ascertained by the
made. In fact. '.si judicial tribunal, and thew
three, acting as q o. ing to the Judgment OF thc
are to he decided accoru.-. "a dissenting member
majority. In this case u = he did not fully
acted with the majority, althoue- : ioa them, ia
agree with them; and he has probah, ~ came.
part, to tie conclusion to which thu. -sxaa
i is also objected that the judgment is bad be-.
the costs were taxed by the Clerk Of the Court, IN
contraveption Of the Judiciary act Of 1s47, p 6l5,
rec. SO. But does that make the judgment necessa-
rily elroneous2 IL costs improperly taxed, and
that should appear the face OF the Judgment the
Judgment would be good, and the relief Of the party
would be to move for relaxation, which would
be granted at the cost Of the irregular party not to
raise the objection appeal, or against the va
ldty Of the Judgment. Some discussion arose a.
to what papers should be presented on appeal In
these proceedings. Everything which wilt aid In
the decision raised by the appellant, should be pre-
sented as fully as 1t was presented at Special Term
together with every matter essential 10 show that
the proceedings were regular, and that Jurisdiction
was obtained to give Judgment. Il u not Hsoesmry
however, 10 include that part of the ConmssioneTT
report relates exclusively TO other parties AMI
fcient to state this In the most general terms. Tho
report should be affirmed with costs.
Judge Clerke dissented. His opinion was pub
lished In the HERALD yesterday.