New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-12-13
Law INTELLIGENCE.
THE WAR OF THE CHURCHES-THREE EN-
GAGEMENrS.

SUPREME COURT-SPEcIAL TERs-DEc. ls-Before Judge
ROOSEVELT.
THE BRICK CHURCH CASE ARGUMENT CLOSED.
Richard H. Arkenburrh and William r Earle AT the Com
nissioners Of the SINKING Fund, tho Mayor Nc.
The Brick Church case came on again to-day. upon
order granted by Judge Cerke, to show cause why
The hearing upon the demurrer to the complaint should
not be proceeded with demurrer 10 the coup Amt,
as sme nded the 3ls day Of May last, foi such
further other relief a. the court may see t to grant
Our readers viii recolect that there w@ q serious
controversy between counsel. to whether the
paint had been duly amended, to contain the
cessary avermtnt that the defendants were taxpayers
in the City Of New. York.
Messrr ID. ID. Field and Waldo Hutchins appeared
for the plaintiffs and Mr. Charles OConor tor the de-
PENDANTS.
Tie tffdavit of Mr. Hutchins was FIST resd in
which be sets forth that the requisite amendment was
duly made and allowed in open Court on the 3ist OF
Msy, Mr.. Fullerton, Mr.. OConors partner, being
present The amendment purpotpg to have been
sworn to before Mr.. Dusenbury, the well known
Special Term Clerk, on the 3lst of May, and certid
of the anne ndment which was fled in his office on tue
! It'll Of july were also put into the case.
Mr. ConOr, in reply read atdsyits sworn to BY hls
partners, Messrs Fullerton and DSnnng, TO the etect
that the argument OF the finished on tbs 3Nh
of May with the exception Of Mr.. Fields haa reply,
vhch was heard on the following moIniag that Mr..
OConor being engaged elsewhere they were there
present one OF them through the whole ana both
through part Of the sitting, to take notes of the argu
me Mt and watch the case with instructions TO call 10
Mr. O'Conor who alone was cogniz ant of the real
state in which matters stood If any new step was taken
ard that they ard othing of the amendment In ques
ton which, il is conceded has never been served on
the defendants counsel.
After considerable discussion Of the motion on these
papers the Court finally said that there had obviously
been Misrepresentation both sides. The plaintiffs
had no right to treat the complaint as having been
amended until notice bad be.n duly served; and isas
much as notice had not been served, the defendants
had right to demur to 1t as IT stood. they did So
and that demurrer should have given the defeodents
notice that their pleading was treated as unamended
They should then have explained the matter to Them
or al once servei the amendment to when II would
have been necessary TO CONFORM her oemurrer
Parties have right in stict practice, to act only upon
papers as they are, but it would be idie 70 decide the
these papers, and thus pass upon an unmo9r-
tsnt though essential issue The plaintiffs nave rgot
order that amendment may be served and answered.
| or demurred to, seems tit. Mr.. Field, however,
stating that rather than submit to further delay the
plaintiffs would proceed to an argument upon the
original complaint the Court formally ordered that the
motion be denied, without prejudice to any future mo-
ton. .
The argument on the merits then proceeded Mr..
OConor opened for the defense by reading pretty
much the same points which taken on tho pre-
urinary hearing, and those which this demurrer
rests which viii be found stated in our report OF bis
closing argument, in which they were discussed at
| length. .
| Mr. Hutchins followed and was succeeded by Mr..
Field. The lne Of argument pursued by both these
gentlemen essentially the same Ii bore upon
three questions.
| r They weie-l. Whether the Commissioners OF the
Striking Fund have authority to execute release Of
the interest of the Corporation for forfeiture upon
breach Of condition subsequent. = Whether me Com
mon Council had passed any resolution authorizing
such release TO be executed. 3. Whether, upon the
authority Of either any conveyance can be made out
until there shall have been sale at auction OF the in
terest Of the city. The Supreme Court, Judge Roose-
welt, had held, . motion Tor Injunction that the
Commissioners had authority, without resolution OF
the Common Council and that there need not be sale
al suction The council commended that this ruling was
in oppcsion to the views Of the Sdperor Court ~ he
| sought 10 prove by note received from Judge Duer
which stated that the ground Of the Court tor enter
tanning a reaYgument was 10 examine the question
whether sn ordinance of the Corporation authorizing
the Commissioners TO sell the property had been regu
The specific grounds of the defendants Ia their de-
murer are that there defect of parties In that the
| Brick Presbyterian Church and Messrs. Wesley Keep
s. James are not joined defendants; that the suit
| should have been brought in the Name either OF the
People, the Attorney General, the Mayor, &C.. and
that the plaintiffs all events, have right to sue,
inssmuoh as it is not sverIed that they are cn1ens
1-psy ers, otherwise interested in the property.
In reply to tbese points as well as others taken by
Nj o Concr, Mr.. Field urged I. That recital OF
the fact that complanants were Taxpayers was sum
ts1-pay er has right to prosecute 10 Court to prevent
an officer OF the Corporation from doing acts Var-
ance with the public good. 8. That the p1chasers
peed net necessarily be parties 10 this suit; but
|
reached by putting in Q supplemental complaint.
4 The release was obtained without authority from the
Common Council; while nothing in the ordinance re-
laiipR to the sinking fund gives TO tho Co
of that fund the right TO sell property without exposing
the particular interest Of the city for sale by ton,
and II could not be cold at auction without pre-
yiops appraisement by the Street Commissloner and
| the Communist Of the Sinking Fund. D. Inc term
real estate in this ordinance could have no appica
| ton 10 this underlined and variable interest 10 the
Brick Church property far regards It's sale, with
! out the authority of the Common Councit-in other
woes if it be real estate within the purview OF ths.
ordinance it was not he real estate intended by that
ordnance that the Commissioners Of the Sinking Fund
| should have power to sell
| az fopows:
l. II the Commissioners had acted without author
ity or had exceeded their authority the relief demand.
ed ty the cOmplainsnts, including the INJUNCTION,
ought to be grained 2. If the Commissioners had
authority, teir acts should not be sanctioned be
carse by their management the property I'D realized
lers than three guar EN- Of what it would have done
| en- fair valuation Of it by weILformed persons. j.
The citys interest in thar property Is public property
net be dsposed OF except IN the manner prescnoeo 70
that peper. 4. II it be not public properly IN toe
meaning Of that charter, still lees could u DO wnaa
the meaning Of the ordinance creating snd regHalng
the sinking fund. s. The Commissioners OF thAf iaod
ve,e Dot invested by that ordinance win power 70
| relesse IN any manner. D. The Conn ssosS n .e1e
not invested With power 10 execute sale q 81 except
BIZ auction and with proper notification z. II the or
! drtspee Greeting the Commissioners Of the SINKING
| Fund did invest them With such power, was takeo
avav bv the charter Of 1853 which requires sale ~
auction 10 the hiRhest bidder g. The resolution Of tho
| Common Council was void, because Il did not pas
| both BoardA-