The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-02-24

compliance would be insisted on "to the very letter.
and that no allowance would be made for any work
materials not specned and the price fixed In the contract
Ten days, the period prescribed in the notice. having
elapsed and the bids being opened appeared Chs
Devlin was the lowest bidder and the contract
cor 1ngly awarded TO and subsequently signed by him
About three months after its date Devln having finished
the job procured from the Street Commissioner certH
cate that the contract had been awarded to him at the
prices annexed and that the work had been returned by
the inspector as properly done and completed and That
he prices upon which the work awarded" were "for
earth filing As do setting curb and gutter stones, per
neal foot, AZ oo; re setting curb and gutter, do
5sepS To
Rogers" and was obviously untrue several very i'm
wrtant particulars The contract executed, copy OF
which Is before me, instead of allowing expressly dsa
lowed the three first charges Aud in the advertisement
for proposals was also particularly stated that the price
for setting the stone and tagging was to include the neces
sary "excavaons and the necessary regulation OF the
Sidewalks and that there were, in effect, 70 be
no extras under any pretence whatever. Rely
without examining the ordinance the advertisement or
the cOntract-the three assessors, taking Mr.. Edward
Boyes survey Of the number Of cubic yards Of alleged
excavatng and flDg inserted In the assessment list not
only the lawful items for curb gutter and tagging,
amounting to about I'll 900, but also nearly forty per
cent in addition for filling and excavation The law
qures-and We to presume the absence Of any al
Legation 10 the airy, that the public officers ia that
resp did their dusy-that when the assessment list Is
made out notice shall be given in the newspapers to all
persons interested to present their ob ctsns Nome
seems were presented, and accordingly the oath OF
y,
unlawf full items confirmed by the Common Council
and became lien the estate of adjacent pro-
pre.ors the Common Council at the same time appoint.
ing Mr.. Joseph r. Taylor collector. Matters, 80 far as
can ascertain from the papers before me- remained Ia
this position until the 2sh Of September following when,
after delay of more than months and after the
whole amount had been drawn from the city treasury,
some Of the owners, not however majority either m
number interest," sued out writ Of certorar 70 bring
up the proceedings for review by the Supreme Court in
order that the might be declared null and void and
the whole assessment quashed And the question now is
motion TO that effect at the present time and by the
present parties alone and in the present form be granted
The first difficulty relates to parties The assessment list
annexed to the return shows, as alreay stated that
great number Of proprietors omitted, and the writ
itself, while naming portion Of the complanants, de-
scribes others only the children of Peter scher
merhorn and John A. Schermerhorn, with other ma
or designation. Although defendants may in some in
stances be sued by description plaintiffs may fairly be
presumed need no such indugeeee and should therefore
ii may be assumed, has name and knows what il is,
either actually by guardian Judge Mather of the city
should the party aggrieved well the of
complaint. As to the omitted proprietors the confrma
in the nature Of Judgment rather in the nature of
several judgments linked together. In such case one OF
two defendants, il has been held, cannot out certo
rari unless he accounts for the non joinder Of the
other, or takes measures to compel him to JOIN
be precluded III Wendell, ia; Cowan, 4s2)
To professional mind the reason is obvious With
any other rule the greatest confusion must follow
Again. matter Of strict law (and this common law
and not an equity proceedpg) must not the parties to
present their objections TO the lower trbuualf Il H 1876
and 674 Can they lie by until confirmation has taken
place and the money been paid and thus in effect if the
should be declared void saddle the expense
Of local improvement upon the general tax payer In the
of Emendorf against the city (25 Wendell 693)
said ceiorari would not be granted after great delay
and heavy expenditures incurred and In Hi and H.
where 1t will produce public Inconvenience, where
the case one Of questionable relief IN this mode. And
not the relief asked by these companans REALTORS at
least queetionabief Can q judgment pronounciDg the
assessment Illegal and fraudulent TO the contractor
who has prohed by it, be fairly rendered by the Court
without first giving the contractor opportunity to be
heard The contractor in this instance may be said has
been notified Of the charge and has omitted explain The
however informal Ia strctness being
party the writ he not bound TO regard the he airing
upon IT, He might not be benefited and he could not be
bound He had right he has done fol his arms and
wait for a summons In regular action against him.
bill in equity TO declare void judgment-the conhrma-
ton quasi Judgment obtained by fraud and to
compel refunding Of the fruits Of the wrong, ordi
harry remedy In like the present. If the REALTORS
allegations be well founded, such bill filed by them
behalf OF all the parties assessed who should TT to
by law the trustee, co-defendant, would to be
the appropriate remedy. throw out these suggestions
however only for the consdera Of COUNSEL the
having ia effect been submitted without argument either
oral or written There grave difficulties involved in
it, which my engagements In the Court OF Appeals have
precluded from examining with that and thorough
which the demands The aid of counsel
ia Therefore the necessary net indispensable.
shall final decision until a further argument,
which, II the counsel prefer that mode, may be in the
form Of written briefs.