The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-07-08
Judgment Against the City for S13s 200
The Wards Island Controversy-McCot-
ter's Claim Verified.

Judgment Against the City for S13s, 900
The Wards Island Controversy-McCot-
ter's Claim Verified.
SUPREME CoURT-sPEcIAL TERM
July 7.--ALnander McCoaer The Mayor, dc, Of NeU
Ywk.-After many years Of legal contest, Mr. Mcmahon
filed this day the decision OF exudge Mason the referee
deciding the controversy in favor Of the plaintiff II ap-
pears from the referees decision and the argument Of
Mr.. Mcmahon, who conducted the case assisted by Mr..
ChAhed that Alexander McCotter sued the city Of New
York TO compel them to perform their contract of purchase
Of lands Wards Islands, made with him by the
Common Council In the complaint, which drawn up
by Mr.. McMahon and which the referee decided 10 be
true appears that the plaintiff in the year 1857 made
proposition the defendants that they should purchase
certain pieces Of Land Wards Island, particularly
specified and described in the complaint for reasonable
price be fixed by arbitration This proposition, after
having been before the Common Council for months
resulted resolution passed by both bodies aud APP
proved by the Mayor the 3lst December, 1887.
In pursuance of this resolution, the Mayor the same
day appointed C. schermerhorn arbitrator the part
of the city, and the plaintiff appointed his part B.
ry 1885, made their award valung the lands and water
rights claimed TO he owned by the plaintiff TO which
he could furnish title, at price for the whole
of about 81 $50 acre, and filed their award on the same
the day with the Clerk of the Common Council,
and gave notice thereof TO both parties On the 4h day
Of March 1855 the plaintiff notified the Mayor that he
ready comply with the award and he test fed
he ready But on the 9Th Of March, 1868, resou
ton, which had previously passed both Boards OF the
Common Council approved Of by the Mayor rescind
ing the of Deceuber 81 1851 purchase the
lands price be fixed by the arbisrstors. The plain
t having been given to understand that the Corpora
ton would be willing purchase the lands question at
81 500 acre, he uishiug all claims against the
city for non compliance with the arbitration afterwards
made written proposition 10 that effect, which was
laid before the Board Of Aldermen IN connection
with a report Of the Committee of Lands aud
Places Of that Board dated the 18th of May, 1858,
and resolution passed by the Board of Aldermen
the nth June 1885, aad concurred in by the Board
OF Councilmen the 1lth day OF the same month.
This resolution was vetoed by the Mayor on the 18th Of
July 1855 but finally passed by two thirds Of both
Boards the Mayors veto, and became binding on the
plaintiffs proposition TO accept 81 500 acre was before
the Board of Aldermen viz the 9th of May, he ad
dressed communication 70 the Board OF Aldermen with
drawing that proposition The plaintiff however after
the passage OF the last mentioned resolution and as al
Se evidence Of the title to the nds be- sold
by him. obtained the certificate Of The Counsel Of the Cor
poraton 10 the sufciency OF the title the 18th Of Oc
iober 1855, and the day, shortly afer,
the leeds and counses certificate and release from
all claims under the award TO the Comptroller and de-
manocd payment, which refused Hence this suit.
Tie lands In controversy in THIS suit consisted Of about
thirty five Of upland and roads and about forty
acres Of land covered with water aud inside Of the
Harbor Commissioners line and below high water mark.
This water right the subject Of a great deal
of aniInadyersOn by Mayor Tiemann In of his
sng.s the Common Council, and excited at that time
great deal Of public attention. the Mayor contendng that
the city did not need it, and the lands were upwards Of
forty fifty feet under water by consent of Comp
troller Haws, the cause referred 70 Hon. John L.
Mason Judge Of the Superior Court The parties have
been trying the before him from September last
until the present time During the progress OF the trial
motion for nonsu was made by Mr. Ely on the part Of
Mcmahon for plaintiff, as, s,ed by M Chaiied and by
Mr. Ny for the city The referee overruled the motion
for nonsslt, delivering the following opinion xiz@Ths
bave been argued at length by the counsel for the respe
tive parties The first ground taken by the counsel for
the defendants was that IL did not appear that the
original proposition made by The defendants, rs set
forth in the complaint was In writing required by the
Of frauds To this II would be sufficient
10 say that II does not appear by the complaint that
vas not in writing and the agreement being, as will be
shown, substantially admitted by the answer, the de
fendants If they had intended 10 rely the statute Of
frauds, should have set IL up in the answer. This is well
established law. IT s necessary only 70 refer 10 Harris
Paige III But the force Of this objection entirely
removed by the subsequent proof Of the ct that the
proposition was in writing signed by the Plaintiff and by
proof of it's loss and of It's contents Indeed 1t Is hardly
credible that legislative body would deliberate upon,
matter Of such moment upon n verbal proposition.
is sand, however, that there was DO acceptance by
the defendants OF the plaintiff proposition and no meeting
Of minds and consequently contract The proposition
by the plaintiff sell certain specified lots the resou
ton which is not denied passed in answer 70 Mr. Nc
the private property and water rights not owned by the
Commissioners OF Emigration Of the city Of New York."
Wards Island and directs appraisement OF all that
property and those rights OF which he the
Now, although there six OF land OF which
McCoticr was the owner and for which he not
contracted as clearly appears by the schedule Of the
lands referred 20 by the committee of the Board Of Al
deImen and annexed to their report OF December 1851
yet n evident not only from that report, but by the
language OF the resolution, that IL was not McCotters
land alone which the resolution intended 10 embrace
The Common Council knew, for Was before them in the
papers he did and had contract for those
acres yet they did not require, condition OF their
action that all the land the island owned by them
% the Commissioners Of Emigration should be included
in the appraisal; they evidently referred only 10
McCotters Land, erroneously styling him the owner;
OF all the private property the island when the
before them showed the contrary Had they intended
that the six should be included, they certainly
would have informed the plaintiff that he must get a
tract for them also and not by styling him the OF
all tho land seek TO oophole for themselves by
which TO creep out q their bargain cannot therefore,
agree with the counsel OF the defendants there was
meeting a minds, acceptance Of the plaintiffs pro-
position because he enormously called In the rcsou
rights the island. The resolution its face
ply 10 Plaintiffs proposition That proposition wss,
S0s 600 thcrcabous, have appraised md sell Il
At the price ai which Il should be appraised Tho Com
mon Council preferred the latter, and appraisers ap
Aer report ,c referee decides that the
plaintiff at end during the times involved in the CASE
of all singular the lands roads and water right
situate lying and being Wards formerly Great Bsrnj
New York whereby hey 'd the d owner county diver,
valuable considerations Agreed 70 convey 10 The said
plaintiff 70 whcmsoevsr he might direct and appoint,
streets and lands lying between high and low water
mark and while he had such contract title he the plain
I'M made the Agreement 70 convey In controversy The
referee decides matter abo the water right that
patsnt q 1911 before advcrted vscd In the -four p
entces the title In fee simple 10 said lands between high
md low water mark and outside 70 tho extent patented
The partes nov vested with the paentecs rights who
.re before stated have full right 70 conway 70 the de-
Iendane such PORTIONS - have not been previously
veycd away, and their deeds 70 the defendants IT
plaintiffs request, vess the defendants with the title in
re 10 sad water rights, particularly described in
DE schedule thereto annexed. A ~ the mode q pay
ment provided for In the resolution finally adopted on the
eth Of August 1885, he decided that the Corporation II
New York have power 10 such securities payment
or And bought TOR corporate purposes The abssoce OF
'uoh power would rot howcver render the resolution Of
he lth August, 1853 invalid would be the duty Of
he defendann then 70 pay In money. Tie want of q
Atement OF The rate OF interest the resolution Of no
he legal rate 81 interest"
The referee winds W his report with the following |
udgments-
II do further Cue conclusion Of law that the
'laintir complied win said contract entered into
lnder the resolution Of the $th day a. August. 1855
" causing such oonvcyances Of the lands and rights