New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-11-09
la " NTELLIT ENCK.
TiiE fltTY-FoURTiI STREET ASSESSMENT
tRAUD>-klRsr CASE UNDER THE NEW
LAW

SNlAEds lOt hl-SffAiM tfkN-NoN. a-HefoSp
I.dss pAyIEs
10 the ms,,cr Of tie Assessments for tagging tay.
fourth stret between Third an. Fourth avenues III,
leading s,t brought UNDER the passed at the ast
session of the Legislature or the enton of rsuda
lent assessment. has Just been decided. BY the fac
in the case II appears that the Street Commissions
gave the contract 10 the highest b. deE instead OF tbs
lowest. A the law required. The property owners
shereupcn filed their petition 10 the Court in accord
hrce with the act Judge Dawes set aside the award.
and directed = Judgment 10 he entered yacatsg the
assessments ard the hen upon the property adjoining
such improvement mace by such sssessmohts, on the
ground that the same was fraudulent,
The following IS the opinion in the case:
DAVIS, J.N the last session OF the Legislators.
es a. - impro'eusn..i in the City d New Si. vi,
tive 70 witch irsrs or irresulsriy had been committed
relative A., tor Local npsOseuens.i toe Cay
IT New 9 at " sf s !. Be- m sss se r.,
slsreved may app, to Ja.iice q ms Court who sss
ora hear to- proof. and ,rss,on. q the pass Tue
iAss ro,ieed, ia, .hsn spp~sr such he,'as to-.
h alleged fraud or ierusty has been committed the sa'
a.es-neps shall De Sas,ed AID the lien created thereby
sy ss a ssa Ss.e % N. c.ss,
Of the Je before whom The pfoceedi held that jas
nstt h', been pSs"sa,,s y % .asns any
list CANCEL the assesneni % vacated and aPocd@s' hal
H. 80 80.
In purssnre Of ae provisions Of hi. set petition has s-s
prr'ruied to ne sesai and setting TORN va, N Toe s
ard Fourth Irregularities and frauds have been eom
Eie' TA..s ION @ mae BY part, sssssI
Nv The ,...,eut Tie ohec! Of ,h, statute ia 10 afford
cheap snd summary method to correct frauds and Irregular
such found TO ea 80 yseste ard st .sde ne asses
sdipsnce rs..ed IL lss for esssns .dswst' r.y
issued by ,he Stree, Commissioner for bids 70 DO he
wors and three BIDS ece,ed-onr from Daniel dsis
{. El Who offered 10 DO e ct 50 cents per foot ana GA.
Geo Mont someTy who offered 70 do a, - cenis per
to take IT, and /, was tSr1supon made with Moaiso@ery,
Z ess per S SsoS ,y Ssw % s
a have also confirmed the assessments made 70 pay him to-
as and 's me contracts essSsd The provision Gu,
Charter hs, all WORK to be dOSe for the Corpois,cn 10
be by contra focaded on .eacd bid, propos pabs
of days. And all such contracts when svea 'a'i
be ayrn 20 lowest bidder with adequate security"
Now the provision Of the Charter is m.ndstoIy sad 'herc .
bidder option, RICH, Of selection ihs Io~
est bidder does not take H. sn mus. Dc re- ana
again to b. advertised. I'll; the lowest bidder does take tho
There no authority given the contracting department.
the contract with other party than th" lowest bdaer
anT SSs Any ssS din on h e ehs. Of the
loves, bidder aud would too plain 10 need ia.rstoa
In the case Of The Pespe Stout County Treasurer TAB
bott %! this Court held u case where the provisions OF ta
Supervisor h* BY contract made IN violation Of tho n tue
could create no sa liability a:,s,, s 3. COMMIT
and that the duty Of the Conr. to reia the payment
airy money such void aud Illegal contract " was further
added that neither the Cooperation nor the BosId Of saper
,sos be bound charged with contract made contrary
,r 70 need citation Neither the Corporation the
OF Supervisors sud pay debt not legal obass
". TIE CITY OF Bsaso bsnc, iO aud He.i
M.yo Of York Cow. 49, weT. e TIED ms,o, nrss
decided CONT That suit Instituted 10 restrain
the ssS n. q the ss ns the aud
hold the contract illegal and void and that the Corpcrssics
son under It. IN s% dsd the s
a. General Term BRADY ast. The Mayor Of hew Yoll
the eonir..t wa, not given TO the lowest hsder The
vos,ed but the general ordinances Of the city drs
We feel hesitation in eoncuIns that contr.c. :.
Illegal and void and imposed obligation on the Corporation Of
e fa1 of Conditions ;hersof But may be urged that
the Corporation by confirming the contract 70 Monspme asS
and precuded by these denying the
SSntsc This view Gas ..S urged il che case Q, Brady e.
with the remarks that the Corporation may disense vita
void contract. and them also BY an d the wO and
oophrmson of the contract by resolution they r.p~d the
hen Corporation and its officer. bear to the subjects
the duties the public. and those upon whom
sess forbid - any such force their s,s Ana
The Court std sat here neither che sse Of tho GOsHc.
they have any power TO create the obson 70 pay for "a
cbsrse and the law never implies an Obligation to DO tbs.
which orbids the party 70 agree TO do Ard for thu hs res
the defendants cannot be treated as ans the unsa
"re difficulty lie. no. merely IN the wan. of ORIGINAL power
in the make the contract bat IN the want Of powers
the Corporation isel msse the than in tho
I
Il follow. that Tho Corporation itself having power 70
make violation OF the charter ! hss none % s.s,
whole proceeding 10 consequently void and OF 10 ec what
wms upon Corporation upon the citizens. aal
upon those OWL er. Of property especially 70 be ases.sS or M
them, consry 10 the law And 10 conformity
the under which at the sse.sments and al proceed
heeupder and all liens attempted To b. created thsresg
It's proper 'emk that the Counsel 20 the Corpo.on dd
make the defend ,h, aud sas'ant ,ols'ie.
Charter lie attends and the testimony taken In tho
b. Instructed by Controller the financial officer Of tAs
Corporation 20 that on iannson Of the porrdnss coo
nected viii, this be satisfied of it, fraudulent
character, and that IL could ~, BE- defended
Judgment aecordnly that il be set aside and yses'ed
Albert Csuco<s, for Portsoners X busteed Coip''sss
Counsel
Warren Rogers OCT. The Michigan southern and NorherS
Indiana Railroad Company, and othep
The motion for an IL junction IN this case - denies
Frat. "A 70 specifically asked Cos In the
psat Is,,rspn the Company from Issuing their s.oad g.:
sse upon u. property o. aid Company % s tns
copy Of which !. anne1sd % .sd complaint.
Itspp,s thai .hs mortgage Intended BY said npes
railroad property sud franchises Of the ssd corporation Ia -
four s,ts Of Ohio Michigan, Indiana and Illinois, and ap's -
I other property whstseycr
10 therefore, in tl. case 20 eSamns q p..s
upon The nen or c, of The execution Of such mortgage -
Before the defendants hshtfuy b. restrained b. ts
issuing the bonds executing the mort<sge mus
obsruc,ion to the sht. d the plaintiff - CREDITOR which
could BE- epf.rcsd in this Court
psiasn % AZ ata''hhrnr lt"s"AN
reach the property proposed be mortsased
Is beyond tho jurisdiction Of the Court coufs -
sw How then could the mortgage however fraudulent -
obstruction injury 70 the rights os TINS plsirah - SO
judgment 70 execution CREDITOR b~ prohibited b. this Cost
a. count of equity! .,..-,,.~.
As court Of equity the Court only aid ae psnos 70
enforcing Judgment; execution, sttschment1 Az IT,
uor.sssr execeted obsuct or prsudine the rse
It'd rights attaching or jadlmsn, creditor " ta S'~e' W
this Court the efore interfere bJ Injunction
Bssd neither ME Judgment, e1ccnsn OF
property be nortsssrd the psin,a ~
night. preference TO that property over o.ne
Of the Company either judgment or sttschns cedt"s
upon the ground alleged Insolvency u the C"mpsn hsH