The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1864-03-18

think no should upon being made personally re-
am yours, very truly, WIN. NJ. EVARrS.
COPY y. ALLEN
DEPARTMENT OF FINANCE, CONTROLLERS OFFICE,
- fs NEW YORK, Feb. Q, 1854.
DnAR SIR desire obtain your written opinion on
the questions presented by the pending litigation the
against myself Comptroller of the city OF NeM YORK
This litigation involves the legality OF tho action OF tne
Common Counsel providing for tho purchase OF ne POL VI
ground known as the GansevoOrt property.
The resolution of the Common Council LOT the purchase
q the land in question was adopted about the time came
By the terms OF the resolution it made the duty OF
the Comptroller to pay the consideration Of the proposed
purchase tho alleged owners.
On the I'd Of February, 1868, communicated to the
Common Council in connection with another subject, my
refusal comply with the direction OF the resolution to
which have referred, IN the following terms
IL Is gravely alleged that the title to this property Is
mot 10 the parties from whom Is proposed 10 be pur-
chased, and while not prepared to say that the OBJ
lection Is valid, am equally unprepared to decide that
should be disregarded and the large amount Of the pro-
posed purchase money paid cut without judicial deter
minaton Of the question.
have concluded to decline payment on the ground OF
OBJ ecton to the suncency Of the title, and leave the par
ties To their legal remedy.
II they good title. the question will be settled
for the protection OF the city and If they have not they
entitled the money demanded It is proper for
say that do not consider the sum proposed TO be
paid be greater the present value OF the property
or that the premises are not well adapted TO public
market.
So FAR as can learn the facts upon which the question
q te 1t would appear that In about the year
1852 the prorcry then being owned by the Corporation
struck of by Joseph Taylor then Comptroller to
Mr. Reuben Loveoy, of this city the highest bidder
He assigned his bid directed the deed be made out
70 Mr. Simeon Draper who then OF the officers of
the Corporation and ncapacitated purchase from the
city. This disqualification being discovered Mr. Joseph
B. varnum was substituted for Mr. Draper, and the deed
made TO him. u Is claimed that the intervention Of Mr.
Draper made the whole transaction invalid IL Is also
alleged that the bond and mortgage given for part Of the
money was not executed IN accordance with the
terms OF saethe interest specified in the bond being six
per cent instead OF per cent stipulated. do
consider TO be question affecting the title The
Comptroller should not have received any other than
proper bond mortgage the city could any
time compelled performance OF the terms OF sale in this
respect.
he substantial ground Of objection is that presented
by the appearance Of Mr. Draper in the transaction and
upon hat ground base my refusal to comply with the
resolution Of your honorable body directing the pur
chase.
Legal proceedings thereupon instituted behalf
OF the alleged owners o. the property to compel BY man
damamus the performance by me Of the duty imposed
by the resolution. In this litigation was represented BY
Tue decision Of the Special Term where the question
FIRST argued was, that the municipal Corporation pos
sessed the power TO purchase land for market; that
Il was represented in its Corporate capacity by the
Common Council; that the action OF the Common Coun-
cn had been vaidly taken; that there was no legal
objection to the validity of the title; that the Comp
troler ministerial officer, and had discre
sion IN the premises but to obey the corporate direc
sion as indicated in the resolution of the Common
Council, and peremptory mandamus ordered
cordiEgiy to issue commanding me to comply with the
directions OF the Common Council From this decision
an appeal was taken to the General Term and after arg
men, the order Of the Special Term, far the
directs the Comptroller TO prepare, sign and deliver the
bonds therein mentioned IN the manner and form therein
directed, affirmed, and directed to proceed TO
execute the writ OF mandamus heretofore issued On the
70 Mr. Deven asking bis legal advice as tohe further
proceedings the matter and his opinion as to the pro
haoe result OF an appeal to the Court OF Appeals: In
view Of tho importance Of the question: he requested
thority, which was gvcn to employ associate counsel,
and retain tho Hon. William NJ Evarts consulting
counsel on the questions submitted have received the
opinion Of Mr.. Evarts these questions, andshe
earring opinion Of Mr. nevin. Mr. Evarts in his opinion,
Is the contract for purchase by the Corporation
Of the real estate on the REALTORS valid in law ana ca
pablo OF enforcement. BY judicial procesdingss ana
ooodina TOR its enforcement?
He answers both OF these questions the affirmative
On the first point after asserting the competency OF the
Corporation purchase these lands for the public use OF
Market aud the completeness and validity OF the con
tract forth the record to accomplish that object he
remarks:"The only detects suggested relate 10 an ad
right to the property legal or equitable IN the
tween claimants may certainly be made the subject
sale aud purchase well as where no such dispute
existed.
He also decides that a mandamus is appropriate
remedy by alleged 10 enforce the contract by
the ministerial officers Of the Corporation MT Lvarts
preme Court be expected In supplemental opinion
Mr. Evarts states tnat "f after judgment at Special and
General TERMS the Comptroller should insist upon pur
suing an appeal think he should count upon being made
personally responsible II the decision should be adverse
FOR the cuslsu
Nc Deyelin in submitting the opinion Of Mr.. Evarts,
states:-"wth my views not differing from those
expressed BY Mr. Evarts on the whole subject and IN
view your personal responsibility 10 the premises
prepared TO advise an appeal from the deliberate
Judgment OF the Supreme Court
Of the claimants Of intended motion for attachment
against for failure to comply with the order Of the
Supreme Court and am notified that will be held per-
soraly responsible such damages the owners have
already sustained or may sustain by my delay
on behalf Of the people Of the tate has taken proceed
ings to prevent the consummaon OF the proposed pur-
CHASE
Under all these circumstances feel embarrassed TO
the course which should adopt
have concluded TO ask your careful and deliberate
examination Of the whole and your opinion as to
she probable result appeal from the judgment Of the
Supreme Court to the Court Of Appeals.
Your recent position a Judge OF the supreme Court
ana member Of the Court OF Appeals aud your acxnow
lodged standing as urist, suggest your fitness IS my
adviser In the peculiar circumstances 81 me case :,
am advised by you that an appeal t. tho Court Of
Appeals will be attended with the reasonable expectation
Of shall feel justified In taking an appeal, re-
ezrdcss ~ any question Of personal responsibility.
will please call the Counsel 10 the Corporation
and obtain rm him the record OF the legal proceedings
viii feel Obliged II you win also consider in your
opinion the hearing OF the recent action u the Attorney
oversy would be gra,Hed 70 have personal inter
view with you on the subject Yours truly,
MATTHEW I. BRENNAN, Comptroller.
coPY or OPINION or HON. wa. r. ALLEN.
SUPREME couRr.
The People, &c rel, James o. rdy0r It al, u.s. Aaheio
q Brenndn COMPTROLLER dc II have examined with care
the statement OF tho Comptroller together with the
printed 10 this proceeding, instituted 10 compel the
execution aud delivery tho REALTORS OF the bonds Of the
CITY Now YORK, 10 payment for lands agreed to be
purchased for the purpose OF market by the Common
Council OF the city.
he objections the contract Of purchase and lie
performance, are $50 fold
l. 10 the regularity and legality, rs depending upon
abe regularity Of the proceedings or the Common Council
To Tho tito OF the REALTORS to the lands sold and pro
posed TO no conveyed to the city.
understand that question raised to the power
Of Council 70 purchase lands upon credit for
Che purpose mentioned. II is within the peculiar prov
incc that body the exercise Of its governmental
functions TO establish and msntan markets. within the
CITY, and It's discretion and not the subject
review control by the courts. AZ convenient and
reasonable, not necessary incident 10 this power Is
shc right purchase land aud pledge the credit OF the
clay Tor the payment Of the purchase price
EVIDENCES OF Indebtedness for such purchase money,
made and issued by the proper ministerial financial oii
cars OF The Cnrnnrniinn- the direction OF the