The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-04-06

lsJsnctisa upon the Mayor-Who 10 60 ray
for Cleaning DroaAway9
sUPRHM COURT-OHAADK1s.
Before Hon. Judge Davies
APRn 6.-Jaco0 L. Dodge Frnands Wood, Asariah
@. rasg, VIM. Baird. and the Mayor, Aldermen and
Commonaay eft< CITY of Neo York.-This matter came
up upon order granted on the application Of the
plaintiff by his counsel Mr.. r. Busted for tho defend
ants 70 show cause why Injunction should not be
made perpetual restraining the Mayor and Comptroller
from signing and countersigning, and the defendant
Baird from receiving warrant drawn in his favor for
the sum of 81 1885, for services performed under
tia entered into by him for the removal of the dirt
and Ice in Broadway. 1t is unnecessary here to
forth the terms Of the complaint they have already
appeared in the BERAID
Mr.. r. Busted, who appeared on the part of the
plain tiff cied many sections OF the charters Of lS4s
snd 1858, rs also the ordinances of the Common
Council Wits view to show that the contrast
entered into BY the Mayor with Mr.. Bald Was invalid
and especially in the lace OF the statutory provision
which sAys-A work to be DONE and ali supplies to be
furnished by the Corporation involving An expenditure
sealed With
notice, for full period OF ten days" (Amended Char
Mr. Shepard, Corporation counsel read the affidavit Of
the Mayor which the dsponen states that he adver
sed for proposals. for the cleaning OF Broadway from
advertisement commencing upon the 4th March, 1885,
and continuing fsur days. that IN OF the ad
MR. Monte The susa Of Str had July
CURED with him in the action which he had taken. The
affidavit Of VIM Baird (ths contraetor) was also read
In the dsponen says that the allegation in ths
onplsint that the work contracted tor not per-
formed, entirely untrue Mr. Shepard then read from
April 1854 in which provision is made relstvs the
sontngeIcy Of the rac'or iaiing to perform
negeotipg to notify him of the performance Ac.
cordrg to the provisions of that ordinance when such
conr occurred the Mayor was authorized to ad
vertise tor proposals, &C., sc.
Mr. S. then aoverted to the ordinance of 1s4s (page
l2o-2sl in which the duties Of the Coumissoper Of
Streets and Lamps are also from page 1928 to
sa s tSshss with .d tho tn a.. Of the
(Bmerded CarteI).
Mr.. Busted followed commenting upon the statutory
and corporate provisions mentioned by Mr. Shepard and
urged that in tie of this contract of the pre-
requisites demanded by the ordinance referred existed
He that however audAbe the intention of this
Mayor may have been in entering into the contract wi h
Mr. Baid nevertheless his act in the premises was abb
solutey null and void in the face OF the 18th section of
the Aei Ct 1863 Amenaed Charter Mr. further urged
money shall be drawn from the city treasury except the
same shall have been previously appropriated 70 the
Shall BE- based upon specific and detailed statements
He also referred to the following provision OF
tracts for supplies or WORK Of any kod .apper
tainr to tie department of Streets Lamps sha be
bonds tie faithful performance thereof SHAH BE- taken
o1dinsnce 1919 Mr.. Busted then moved the Court
that the juno ion be made perpetual.
Mr. Shepard in behalf of the defendants, said that this
involved very important question, and it In order
Twelfth sc ,ton Il the amended charter hat he came
before the Court and that question being decided there
were no other dcultiesin this case He would take the
cuped by the applicant fer this injunction. In the first
place they stated that the Mayor had power whstever
set forth in their complaint and they could not 60
outside of their complaint to find other facts to
exist. The second question which was presented
by the plaintiff was, that there could be no rgaA.of
done Ia reference to that proposi.iOp he (Mr would
say that the affidavit Of the applicant for the injunction
was eontIadc:ed BY the Mayer and ano BY Mr. Baird,
sgsipst the plaintiff h. therefore would not discuss
that proposition, but would conGne himself to the first
which he had stated On several matters he
and the counsel the other side would not disagree In
the first place. that 1t the design Of the act Of 1649
boiies CT the Common Council to their legislative duties
In the second place they would agree that WAS tbs de-
sign of that charter and also Of the subsequent
charter of 1863 to establish what might be termed he
contract ~ stem in other words to provide that all
municipal work should be under general regulations
order to clear tbs city from the mschie dangers
and of individual for persons whose
claims to preference frequently Of exceedingly
- h M.xor sdsr ta T @
ties 10 be found generally stated in the seventeenth
secti Of the charter Of $780, which not repealed by
either Ct the subsequent charters alluded to- The learn
cd counsel here read f9m the act referred TO- a. to the
duties of The Mayor they are q course 100 we kn ,wn
to require repetition. nder the charter Of lS49 the
adopted several sections of which had been referred TO
by the counsel on the other side; he orr So would how
contend that the joint resolution Of 1854 repealed
that ordnance to certain extent. This latter ordi-
nance or resolution QS54 provided In accordance with
ferred for the cleaning Of the streets by contract 1t
contemplated however that contractor might no. per-
form bis contract and also that Superintendent of
Streets light not discharge his 6uties and it gave the
Mayor tie the failure neglect CT the contrac
and the supersdded neglect Of the Superintendent Of
Sheets the Then the question
whether that nance the lew in this
He cid not anything, had he heard thiog,
tenoig to shos that 1t was not Hs took it that wv
would be, whether the Mayor pursued the law in his
course OF preceding and again, whether he was suho
stsrcss STATED in 1he ordinance to ins itute the pro-
ceedrgs which he had. As to the first proposton-whe
complaint in this case, that Broadway entirely OBJ
stIuced by snow dirt and zee it Was in bad condition
for org space Of time AID the Commissioner of Streets
did not IL he bad authority to do it the
business Ct The Supern ten ent OF Streets to do that
DUTY wss in posed upon him by the ordinance Of 1s49
no such duty imposed upon the head of the depart
men and the Commissioner had control the Su
perm ent Of Streets in the discharge Of that duty,
hr S. hen directed attention to the affidavit Of Mr.
Wood az 10 the notification Of the Superintendent and
c. Commissioner Of Streets, and pointed to the state
s IN the :t p, sg "a m Re sss
the clearing Of Broadway Was that agreement on the
part q the Superintendent substitute for nose in
vritiugY He (Mr. contended that it was full and
compete notifcati The Superintendent of Streets
with the Mayor the the latter had
evised for freeing Broadway of the distractions which
had occssoned such uncomfortable annoyance. Ia fact
he sgrted that he had had notice. and he he Super
inter DENT dd plain to the mater OF notidca
ton be (S So would Ike to know what light the plain
tin bad 70 come In there to complain, and ask in
junction such as had been moved It was conc ded that
the advertisement for proposals had been published only
Ter The space of four days. and the question that then
was, whether the twelfth section of the act
of 1888 required longer period of advertisement he
leaned counsel here quoted the twelfth section Of the
that the legislature could ever have designed that
any REASONABLE would choose to apply
hat provision in the full breadth Of its terms
because il it were applied, its application
would lead TO very serious mischefs. As example,
suppose that certain nuisance should be established
Iequrrg siderable extenditure to remove, the
Coporaion obliged to permit that nuisance to continue
for ten Gays, to adverte for ten days for proposals 70
remove itf
The Court-rbere is provision in the health lsw Of