The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-03-24
MOTION TO Vacate n Large Judgment
Against tho CITY.
COMMON PLEAs-sPEcIAL TERN.

oo""oN rLEAs-SPECIAL TERH
Before Hon. Judge Hilton.
MARCH 70 -Dibald Mtliewsann and Frederick Niuemann
I" The Mayor, de-, Of New York-This was IN applica-
ton on behalf OF the Comptroller to vacate and sol aside
Judgment for sl3974 90, obtained by the plalntns
against the Corporation on the 2eh of September 1852
From the affidavit OF the Comptroller and tho other ps
pers read on the motion, appeared that the action was
commenced on the 9th Of October 1885, that no answer
plant in the action until the 26tb OF September 1859 thst
the action was brought by the PLAINTIFF as the asstxuees
OF one lhos = Bumenrother, who had made contract
Win the defendants for paving regulating, &C., Tenth
avenue, from Forty fifth Fifty ah Street. The contract
being dated May 13 1853 The complaint alleged that Blu
plAnts 70 become his suretes for tho performance Of tho
work under the contract and to make advances 70 him
70 enable him 70 pay bis workmen, and furnish materials
Ior me ana agreed 70 assign To the plaintiffs the said
conec ana tne moneys 70 grow due hereunder from the
defendants and DID execute assgnment to the pain
upon executed bond to thc defendants for tho fiSul
Of the work under tho contract by Humeu.
Iotner Tue complaint also alleged that the plaintiffs
during tho OF the work under the contract
by Blumenrother. made advances TO him amounting to
eiool6 ca also alleged the completion OF the work and
dcanded Judgment for the said sum Of SO 0i6 OF with
interest from Juno IL, 1854.
The answer q the defendant alleged h. the contractor
was prchioited from assigning the moneys TO become
due under the CONTRACT unless with the consent OF the
defendsns 70 DO sgnined by tho endorsement Of the
sent bad been given the assignment to the PLAINTIFF
and that The defendants had notice OF the assignment
The answer also averred that Bumcnrother did by the
consent Of the defendants, sgnned provided by said
contract duly assign all his interest therein and the
moneys 10 grow due Hereunder To Frederick Penz by
assignment dated Nay g. 1862 which was fled In the
office Of the Comptroller, and was In all respects legal
valid f' -
also alleged that the defendants had paid To pentz all
that duo on account OF said contract that there
was nothing due to the plaints hereunder II also ap
pears that tho cause referred the 10th Of August
1859, and that subsequently tho referee made his
report In favor OF plaintifs for the fun amount
claimed but BY certificate Of tho referee
was shown that the Corporation failed to prove
trial that the Corporation Counsel appealed 10 the Gene
raj Term but made case, and that subsequently,
appeal was dismissed, and the judgment affirmed by the
general term by default The application made by
the Comptroller under the hh section OF the act OF 1850
allowing him TO move to set aside judgments obtained
against the city which were obtained by collision or
founded In fraud the present Corporation Counsel
septrg, however, to the oplication.
The plaintiffs by adavits denied all fraud or coll usio
In the matter, and infested that their claim just
and Jond de one end hat the judgment should not be
disturbed.
The Judge granted the motion open the Judgments
and In doing stated that the application should be
Parded as Of twofold character first, either app
cation for relief under the statute Of 1852 second
motion the part Of client TO be relieved from the
result q the gross negligence Of his attorney that as all
fraud denied by the plaintiffs, and there
ground for any suspicion OF fraud collision the part
Of their attorney the referee, he preferred
decision upon the latter ground and would therefore al
low the defendants TO como In and defend payment Of
coets.