New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-03-12
on,...................6.9i5cu cubic yards,
Tnll ..,h,a v.r}s

earth and II OK had been taken as the OASIS vi tue
contract, and which is ascertsned to have been
a. folows:
Rock 7OtJ cUoc yarus
the bids would have been rs follows:
v,.., 'as; I dS S "a . aassPs !,
s s9si.a;.:::.:::::: : So 8
S :; : 9 SIS s
From this ii is manifest that the bid of Farley 70 do
the work the highest bid mace; that he will re-
ceive ~ 600 more for ths work than any other bidder
and than s., 600 over and above whst f.uis OF
fsred to 10 the same work
II is clear therefore, beyond all contradiction that
the 4, nraCt awarded, and given, and made win,
not the lowest bidder, but TIE highest
The pre- vions of the charter and ordinances 10 iorce
at this time were such to mske It obligatory upon
the Street Commissioner aud the Common Couucu
to award 10 and make the contract with the lowest
bidder tSection 10 of tue Charter of lS53 Dav Laws,
D. 2l2; Sec sol of Ordinances of lSi9, as amended)
Ii il we'll settled that contract can be made Whcn
will bind the corporation which IL made contrary TO
law. (See cSredon agt. Stout Abbott, -, ana
cases there cited
II follows therefore tina, this contract having been
made in direct violation of law, cannOt be enforced
and under the decisions made Ia this dstI IT, the pam,
tiff taxpayer has clear right I" inyoke tue ala
of this Court to RESTRAIN ts execution or the psymoh
of any money out of the City Treasury ON count
thereof
A judgment will be entered declaring the contract
illegal and void, and thata perpetual injunction be
granted a. prayed for in the complaint.
THE LOWBER CASE.
MOTION TO DISSOLVE TIM isJrNcIIos DrsItD.
The People, &c. sgt. X. W. Lowber, the Mayor SC.
Dawes il regard the complaint III this cause "a
ame uded by striking out therefiom the words " on
the relation Of. 1t therefore star As suit whereia
III. People, &C., ard Azarlah &. Flagg, corporator
and tax. payer, are parties plaGtlh.
The order made at tie General Term OF the Supreme
4, 10 her ~ he ~
Der agt. The Mayor &c, declares that the answer
nterpoed that case and all Subsequent proceedings
tLer.ID Including the recovery Ut Tho Judgments men
toned therein were set aside aud ted, prOvd 81
The Controller or apy Other taxpayer or corporator
loud within thirty days alter the service OF That
order, file and serve an original complaint a. tax
payer, cofpOTat0r or otherwise, ON behalf ot himself
and OtLer, setting forth such matters, ard mskiGg
su.h parties, and praying such relief as he may be al
vised together with bond n: hereinafter provided;
ami IN the mean time all proceeding. IN that action
wee stayed. AID it was farther provided, that II
such acti, should be need, then that all pro-
ceedirg "a therein should aso BE- stayed until the final
iudg meIt it, this action, provided bond was Rlve0 to
Mr. Low Der III the sum OF SJ,Wo cOnfI Toned 10 pay
hlm all damages which he ght sustain by reason of
the ctupienceutnt of this action. It appears from
the papers before me that the time limited for the
con tncemert Of the suits by the order OF the Cen
eral Tenn expired on the 3Oth day Of January last
That the cUupla in this cause filed IN the
Clerks Office the Goth day of January last together
with the bonds or undertaking required by said or Ter.
Ihston the same day the sunilIuns and complaint
were served the Mayor Of the city but that met
teCtUal attempts made to serve the same On that
dhy ard the succeeding on the defendant LOwber.
carrot doubt that the order If the General Term
requiring original complaint to be filed aud served
within thirty CSys. has been complied with, and th,t
that cOnd ton having beeu fulfilled the order u The
Ge,erai Term wLich directed tue aus yer AID all sub
seaut NJ prcceelngi in the case of Lowber agt. The
Mayor &c, including the judgment, to be set a.de
ahd vacated, to,k effect according to It's terms, and
.ltT l..sa ~. aUhN xfa
IT canrCt be ssd that THAI order has not been com
Piled with, because the peOI have been made parties
plant ffs with the taxpayer and corporator
Permission WAS expressly given by the General
Tenn to the tag pay.I aud COpOratOr OF making such
parties ID the suit to be- Instituted a. he might be
advised. 1t was, Therefore, perfectly proper for
him to make the people parties 10 the action; and II
they, by ther proper officer, consented to o. mace
pa tle- plaintiff rather than GetendaIts there can
be Lo objection to sGct procedure.
Ii Was further urged that the order Of the General
Tenn required bond to be executed on the com
mel meHt Of the suits, and that tlat provision oil
the order has not been complied with, by the execu-
ton Of an undertaking. The Court msnifestly in
tended To require security 10 the party stayed IN the
sult pehdDg against the Corporation, and whether
is called b, nj undertaking IL matter oi no
moment. Ii is the substance We are " look AT has
MIR Lo1ber received the security contemplated by
the order Of the General Term Cndenisbly he has,
sud whether it is in the form OF bond, a. used UNDER
the old ytem Of practice, or that OF al undertaking,
lust cause Of objection. lie has the security required
by the order aud which will be effective tor MN IN
case the Contingency arises IN winch he can use IL;
All the conditions equird by the order vi the Gehefa
Term ing ia my judgment been cOnpiird WIN, IS
the order Of Justice IngraheIn made On the JUN VI
January correct
II | au riclt in the view | bave expressed II was
not ece.sary d. the order VI the Genefsl Term sye1
all Proceedings in the suit therein referred u, ana
a. soon as this suit c0mmrnced tuele WI uO "n5s'
eny Judgment or execution u ne -ldyep
Tie argIn n, therefore, tbe sucn order wac rre9u-
lar becnnse bond N accOrdaLce WITH TIE provision
Of the Revised Statute net given, has 10 fUce.
II Cont by virtue Of the c"ntIOl and authority
which il has over its proceedings aud records has
et ssce and vacated the judsn eDt mentlooed Ia the
complaint in this cause whether ilsht'uHy or not Is
10: for me say Such understand 10 De the order OF
.te General Term ard as long L remains unTeyeised
il i. binding upon this Court. The Injunction order
therefore should, in my judgment, have been 10 re-
strain any further proceedings 10 the SUIT Instituted by
Mr. Low Der az sinst the Corporation until the fna de-
termination Of this suit and the INJUNCTION order will
be modified accordingly.
IRE complaint presented good grounds for such an
order berg indifference If that made at the General
Term snd The undertaking executed aud fled was al
the security required BY the Code.
TIE motion ~ vaca,e the INJUNCTION order in this
Gaze mace January 80 1853 ID denied bat TIE same ID
20 be modified according to the suggestObs above.
TN DEFALCATIos AT The UsIoS BANK.
Before Judge .CLgAKE
The Usion Bank il the City q Sewyotk AZ. Jacob Mt
ard Garrett S. Ho.,
TLls IL civil tut to recover the value OF certs.a
prope.ty which the plaiutiffs sege was wrongtu!ly
taken and converted ty tie deienranS. Toe Pa'tcu-
ias d The detslcston appeared 10 Tai TRIBUNE ou
THURSDAY.
o. molten of Jot Foot $50 st.orrsy Tor t5, Union