The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-04-05
Court or Common PIE ~ :.
Before Hon. judge DAILY.

THE CITY.
APRIL 3.-In the MIter II jacob D. @. Outlodtcr us Inc
knOr, de-, Of NeD YordTnis one Of several in
which judgment has gone ainst the city by default and
last term W. C. Noyes argued motto for reopeaing
AID new trial behalf Of NJ. Haws the Comotron-
or, Richard Butteed, Esq, Q. O. appearing on the |
other s.de. /
TIE Jrdge, n his opinion In the first case, says
II is objected TO this motion, that The 9th sec. OF Il
at OF 100, Iage l27 under which made uucou
si,uona. The Cons tuition declares art 10,
10 private or oca bill which may be passed by the Le-
gsatpre shall contain than subject, that
shal be expressed in the title The title of the act in
question 10 can TO autho the Supervisors Of the
CITY county Of New Yors TO raise money by tax The
first second sections orze the Supervisors 70 raise
specific ,um by be applied TO certain objects and
purposes whch named in the act The third section
au,hoz.s Them direct the Comptroller TO issue revenue
bonGs to amount sufficient 10 pay any Judgment
obsned sgans the city, other than those mentioned aan
proviaed for in the second secton aud 70 satisfy claims
O. mbers Of the police force for back pay or sfea
ages Of saary, and 70 raise by the next succeeding
year that is In 1850, sufficient for the redemption
Of the above bonos, with Interests and the h
section the in question: authorizes the Comptroller TO
take the proper and necessary means to opea and re
the Judgments against the tc;iy, which he snl
have reaons 70 believe were obtained by coiusion and
fraud, and for that purpose 70 the name of the
DEF. and 10 employ counsel think os d!ta sec
clearly within the subject OF the act repro
scented title The Of the bonds, and
will depend upon the amount Of the judgments paia
and any Of these judgments should be reversed, and
Judgment given for the city, or any Of them should be
reduced in amount through the step which the Comp
uoler has taken by this notion the amount for which
revenue bonds TO iesue on 1t, and the amount to
be raised by tax In 1860 for their redemption will be
proportonay lees In the end provision, therefore, in
anact authorizing the Supervisors TO raise money tax
which plates the possible reduction of the amount
which the tax is TO be imposed much part
Of the subject OF the act intended by the title other
part Of IT, the act had named the sum which was
o.la nf thu
the jude ment referred 70, there might be doubt
but is left TO the Supervisors to ascertain the
amount Tor which will be me- essary 10 Issue reve
bonds, usual the amount necessary for their
redemption and the Obligations for which provi
which the Comptroller by this section rs authorized
take very clear to my mind that this provision ap
pertains to and forms part OF the whole subject Of the
act affidavit OF the Comptroller that he has
believe that the judgments were obtained By col
fusion and fraud is not Of itself sufficient 10 enable
him to have the judgment opened or reversed. His
belief that respect shown TO the Court, is insult.
Gent enable him. ia the language Of the act TO take
all proper and necessary steps have them opened
the Court whether the application will be granted
not The judgment In the for damages arising
the settlement and cracking Of the painrls build
pgs the referee finding that the foundatons weak
by flowing into the cellars Of the buildings
from city Sewers the mouth Of the being
30 situated. The case, which eminenty be
tried by jury, referred. by the written consent Of
the Counsel TO the Corporation, 70 single referee
fet,ed and cracked in consequence OF the water
flowing the cellar from the sewer, was the painhim
ee builder called " prove the damages, whose
testimony is contained in four lines be had ex-
smned the buildings, ana that would cost all Of five
thousand dollars to put them In the condition,
nearly az may be- they before the water
in" The Counsel to the Corporation was not present at
the hearing before the reeree but one OF bis assistants
acted in his stead No witnesses called behalf Of
the city No examination Of the buildings on the part
the city, either TO the cause OF the injuries e
the extent Of the injury, as TO the extent q
| the damage, appears to nave been made, &C. tke
! from the diligence shown IN preparing adida' III
remit the motion that lit had been, the fact would 70
been shown. The builder not asked by the Mt
OF the Corporation Counsel whether he made any esn 70
the same eeudon as BEFORE or how Ike
5000 ascer,aned; whether II was . mere gen, al
guess founded upon positive and accurate esms o,
ssch might be presumed he would carefully make
about 70 make contract to restore the buildings, 80
far as possible, TO their former condition; and upon
testimony q the plaintiff as as to the cause Of action,
the was submitted on the part Of the referee,
who gave Judgment for the whole amount claimed 10 the
that he knows that he will be able TO PROVE trial
granted that houses were built cheap as tenement
East river, and liable to settle and crack That other
buildings the neighborhood have also settled
the newly made soil upon Which they were erect T.
| ed and this fact-certainly very important
one-s neither contradicted nor Questioned in
till The Comptroller further shows that he knows he will
be able prove that the damages sustained by the plain
M reference to the building AID not exceed $500 That
caused them be examined by competent builders
ASCERTAIN the Of the actual damsges sustained
by the plaintiff and will be enabled TO show that the prp
| cipal damage done 10 the walls; that
other damage Of importance was done TO the pro
fore that such Builders offer I, build the entire
wall for the sum OF 81 o0o and completely restore
the plaintiffs property to its former condition. The plain
tiff that he met the persons sent by the Compro
err they only examined the outside Of the walls and
did 20 through them examine the side walls and
that he proposed show them other damages INJURIES
which they declined 10 examine-that the damages are
confined to the walls but that all the walls Of
al the houses are injured He has also submitted
have examined the buildings and that II will cost
| s6,oeo TO repair the damage done to them by the
overflow OF the sewer but this testimony Is Of the
same general character that OF the builders who
testified on trial II did appear that any one
them made any attempts to get at the actual
pressed in round numbers Ut IS Goo The plaintiff and his
attorney also swear that the judgment was not obtained
by cousion and fraud but fairly recovered think
upon facts presented, that called upon
open the jndg and order trial The discretion
well expressed by Graham, after full review of the
thores Error he says "is the strict right Of the par
motions avoid verdics take wider rangs, for the
part addressed to the discretion Of the Judge upon
the equity and conscience Of the case Graham New
the part Of the Comptroller and OF the which
the cause defended, think we are called upon to
nterpose the protection Of the interest of the city,
and shall therefore direct that the judgment BIO aside
and q new trial ordered.
Charles Brush u.s. The Mayor, Gc.--The questions of
law involved in this motion have been decided In
the case OF Outwater vs. the Mayor, and the same
decision 10 made upon this motion The documentary ev
idence existing In the Comptrolers Office is Of such
character render II necessary that should
the nature Of the evidence before the Referee upon
which the judgment was founded II does not appear
that any person represented the City Counsel upon the
trial before Referee The Referees report Is that he
heard proofs 10 the facts and he finds that the
terial allegations in the complaint Under these
circumstances / think that 1t Is duty aside
thesjudgment and direct trial
John Kelly The Kdyor, Gc--The questions Of law
involved in this motion have been decided In the
case Of Ourwater against the Mayor, and the de-
cision s rendered upon this motion The judgment
for $407 for work in cleaning Of the
city under with the Corporation The plaintiff
not fulfilling his contract complaint made 70 the late
Comptroller, and reduction Of ten per cent accord
inRy the pay ment to be made the streets be-
ing thoroughly cleaned at the expense Of the plain
,ifI, which expense exceeded the amount which the
plaintiff was authorized to claim under the contract
The cause referred to referee who found that