New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1860-07-28

obsrge Of the duti-s belonging TO heir Depsrtnsos,
they have authority 10 ac-bnt nsith- % tae pas %
power 20 byiDg acions Hthoa aut Ioiy, 70 isPo,o "
The properly OF rights OF the CORPORATION WHOM a
thor or - ma admissions 70 bind s1ch Co-por"d?n,
any more than other persons 10 the employ oil me Wy
GOvernu eft. IL,
II woud Re almost Impossible TO form correct .lss
of the consequences If were ever esIapiisei I'm
any head of a department had the power Whom az
thoortv Of the Common L run il 70 dispose OF Guy
rights and property, either directly or lhuu9y UNI ,
if the bead Of the law department e1I1 d. M p.sIo
make the Corporation party 20 sun, aud "nyn
laToe recovery IL had sg inns. the city IN slpla
tha? the cite snail Dot have any means OF review %
redess hs would possess an aosolate PHI o'r VIC
city proper far beyond that possessed even Oy I"e
Common Council III -, 80.
and thl, The ipulations 80 made were unaaIAof1ea'
and cannot be sustained.
Nor can he said hat the plAntns nave os'u lsi.'
nv any such stipuatons. They acted with ill kno"-
doe Of the facts II was By their act the Corporation
ceased % be defendants, and wheu the snpaiauohs
were entered into they knew or were boho " hn9W,
that they not necessary IN the c?nducg OF tpe
action, and were not WltnIA 'ue A~'-0i"J ~
Whatever might be the rule II the oEposite counsel
supposed The defendants counsel bad authority TO
make such stpulations, care can be found where,
acting with knowledge that such authority hd noi
exis. or had not been conferred by the party any
Court has ever upheld such stPulatons.
Other consideration might be stated why these pro
eppuupg ~ OF ElpulatloH blvulu uVs W AphV''I
40 as 10 deprive the defendants of any rights by way
of appeal or trial, 10 which they wouId otherwise
be entitled.
Mr. Justice Potter throughout acted on the supposon
that all the questions OF law in the case were 70 De re-
viewed BY the Court.
When the motion 10 dismiss the complaint was made,
he denied it. and said " 1t is hardly TO be expected
thar Justice at Circuit should properly dispose OF
ouestious of such importance. l think the Court caa
bes, discharge it, duty by trying the case az TO leave
every question in such condition as TO have II re-
viewed before another Court.
And when The defendants counsel was Submitting 70
The jury tler view as the title 70 the properly jus
tee Potter stopped him. aging: iou may be entirely
right hat hsve not deemed 70 important except Tor
the purpose of getting the facts before the Jury which
way this Court shall rule the questions OF law. =,
And In regard 20 the summing up, wien the tonns3l
were limited to an hour EACH Mr.. Justice Potter said;
The facts are very limited 20 60 TO the jury. Tine
main questions will be for he present disposed OF ~
the Court with the expectation that this only Pre-
liminerv step 70 the final decision OF the case
The jusge in bis charge 70 the Jury repeated these
suggestion g. an6 told the Jury that the trial was an
inc,psnt STEP for the purpose OF having THIS acton
brought 10 the highest court, 40 that all the qne59ns
10 be disposed of may be decided by the court Oh ne
view"
From these statements, made by the learned Justice
before whom the tried, IL sapparent through
out that he kept constantly in view the reexamnstlon
Of the case in higher Court ana lhat MS lu iu were
decide the case finally, than with view TO It's beng
terminated before him.
OF that right the defendants have been deprived by
the spuetions and they thus concluded IN case
where the Court ruled as 70 what was eonhde1en
the str CT rules of law, but in such way az 70 get AL
the facts in evidence leaving to the Court tloe cor
rect apy errors OF law which might have been oeea-
stoned thereby.
Under such circumstances, think no Court would
be warranted in holding the sipuatlons bidding.
Much stress was placed upon the supposed eompll-
ance with the opinions expressed by the judges at
different times, in this case, az warrntlng these pu-
latiops. =,
The decision by Mr. Justice Sutherland did undOubt-
edly say that the city and the tenants onght not to
have been made jointly dependants. III Howard,
D. J6j. In compliance with that decslon,
The plaintiff applied 10 dismiss the action;
az 70 the city and paid their eoss OF this order enered
By the plaintiffs no complaint is made. But thai sane
opinion clearly stated that damages cood be re-
covered in that action against the city, and yet the
stipulation after@aTd made admitted such laolhty. 20
in the opinion delivered by Mr. Justice Rooaevelt, he
stated that the city lad Improperly been stricken out
as defendants for want OF hs consent OF the Attorney
General. But Justice Roosevelt probably overi'oksd
the authority of the Attorney General 10 Mr. Van 3D.
rer 10 appear for the State and the statement OF tue
Attorney General which was among The papers, tbit
although the action was not commenced by hs anhor-
ity M Van Buren had acted and that ne had discon-
tnued the action against the city so far as the ~.
torney General connecCed with the proceeding,
this letter presented sufficient ev fence of all the assent
On the port OF the Attorney Gene 81 which he could
give and his assent TO the ratification of the act might
be implied from the statements made by him. Il
probably these facts that led 70 the omission in the
order as finally settled by the judge Of everything
curing tie Corporation 10 be made party No such or
Ger having been nadeby him. the city was not properly
party. Nor could il with propriety have been made
party ia any other way than setting aside the proceed
iDgs by which the Corporation discharged ~ de-
PENDANTS and ordering them 10 denur. No uch order
was made by the Judge and AN forced 10 the
the counsel in g'ipuatinQ
them in defendants, was unauthorized and cannot
be sustained.
Nor can think that the opinion of Mr.. Justice
Roosevelt that the city should have remained deiend-
ants W. the controlling motive for their restoration as
defendants, when the same stipulation abandoned
everything which he had ordered 10 be DONE and left
the properly and funds under the control and possession
Of the Receiver in direct violation of the order he had
| made in relation thereto.
Nv conclusions therefore are that both stipulations
are void and must be aside that the Corporation
were improperly made defendants after the order dis
missing them bad been entered and that all subsequent
proceedings AGAINST them irregular and must be set
aside
From the conclusions that have arrived at upon
this branch of the case il is not necessary thai should
examine very minutey the grounds on which The Con
troller's motion alone would rest, viz COLLISION or
fTaud in the claim which the judgment is founded
think it proper to say there is no direct evidence OF
either II there is any such collision, IT can only
be inferred from the proceeding after the deci-
sion Of Judge Roosevelt That those proceedings
were strange and unusual, when 30 large inter
ests were involved, that the stipualious ought
not 10 have been made that it unwise 10 consent
10 put in an answer for the city and 60 10 trial within
two days, and immediately after the counsel who had
been employed in the for long time previously
were discharged and new counsel employed without
notice and without preparation, is very apparent. IL
would equally need explanation TO show why con-
sent was given 10 make the Corporation liable III oPpo
ston 10 tue decision OF Justic. Southerand; why the
moneys in the hands of the Receiver was kept there
10 express violation Of the order of Justice Roosevelt
ba stedr in