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

transaction and Mr. yarpum substituted not as his
in interest Of the original purchaser from the Com
missioner Of the Sinking Fund Whether the grant to
Mr.. Draper was ever delivered TO him 10 not very ma
teria.
UPON this fact Mr. Draper and Mr.. Lawrence, clerk
In the tomprolers ofce differ in their recollection II II
not delivered, then title ever vested in Mr.. ORA
per- and The grant to Mr. Varnum vested the title in him
without any agency Of Mr. Draper II it was delivered
Mr. Draper could only be Invested Of the title by for
nal deed OF conveyance either 10 the city or such
other person as might DO substituted 10 the place Of Mr.
Lovejoy.
But the change was effected and that In a formal
and the interest OF the parties Ia papabe and rea
sonable effect should be given to IT, Is ndisputable
that, Immediately after the execution Of the papers, and
almost before the Ink dry and whether before or
after the formal delivery OF the grant is not MATERIAL
draw from The affair and to this the city, and all the
parties in interest, assented.
The grant him was marked by the Comptroller Scan
celed" new grant was made by the city 10 Mr. Var
num- and his bond and mortgage taken 10 lieu OF that
before executed by Mr. Draper and the latter was re-
funded his 600 by Mr. Varnum as the more convent
ent method OF reimbursing him the money which had
passed into the city treasury and could not without
some little delay and trouble. be Withdrawn
Mr. Draper TO give full effect TO this change OF interest
and substitution Of grantee In his place, executed
quit claim deed TO Mr. Varnum The form OF the ransac
tion not important Tho substance OF was to suosti
tute Mr. Varnum the grantee OF the city in place Of
Mr. Draper, and 1t was properly accomplished, and Mr.
Draper etectuay out OF the transaction and dis
connected with II and the title az his name had never
been connected with IT, The REALTORS take title from the
city through Mr. Varnum, and not through Mr. Draper
the deed the latter only operating to any cloud
that might rest upon title by Of the grant to
him. which appeared upon the record Of grants IN the
There is no evidence that Mr. Draper had any eonnec
zion with the purchase from the Commissionerso the
mixing Fund and he denies explicitly that he had, 80
that the whole alleged eeaty made to rest upon the
grant to him. In respect to that it Is sufficient tosy
passed and the grant to Mr. Varnum vested the title
in him. IL the grant TO Mr. Draper was merely voidable
the result follows; for IL was avoided and new
grant made capable taking by the united action
OF the parties in interest and the city authorities Tnat
the city authorities assented 70 the change and substu
tion OF grantee and mortgagor, IL evident not only
from the acts OF the Comptroller and the legal
presumption that he acted under proper authority,
aid the long acquescence Of the Common Council but
from resolution for the purchase Of the lands in
which the lands terms designated as conveyed to
monaity Of the city Of New York by deed bearing date
December 81 1859 am OF opinion that the title OF the
under the grant to Mr. varnum s good and Valid subject
only to the mortgage to the city Tor the unpaid purchase
money and to any ncumbrance that may exist thereon
for unpaid taxes and assessments The city could not In
my judgment repudate the conveyance TO MIR. Varnum
and reclaim the property from its present owners unless
there some fraud in the sale not disclosed or alleged
in any papers that have to my notice. and in which
the present claimants particpat0rs, or OF which
they had notice before they acquired the title But an
other ground may be upon which the contract
of the Common Council oFthe purchase of the property
from the realtors may be sustained and enforced.
The claim under the varnum decd was certainly
colorado, and after an acquiescence by the Common
Council for ten years and over after ts execution the
city retaining the cash payment Of forty thousand dollars
without an offer 10 repay it, and the securities
given for tho residue OF the purchase price, the land
having IN the meantime as IL would seem from the pro.
posai 10 sell and the terms of the resolution &C.
ceptng the proposal beng made from the North
river. by filing TO the amount OF million three hun
dred eighty Thousand cubic yards, esla
by the contracting parties at 3 437 co. there be
petense that there was not claim II not an actual title
aud interest under the varnum Decd which would be the
proper sub ect Of compromise purchase and release,
the city desired TO regain the lands and remove the
compromise and release Of disputed claim or title
constitutes good for an to pay
in good fah and with some Of right to real estate
the title to which 1t Is also claimed by the city, shall be
contested submitted and the land yielded up is in
all for the Common Council TO decide II can only
be a@ n%dS 80 hs a.
ment TO money for it's release can be avoided for the
If then the objections to the varnum title were better
founded than think they there is a sufficient con-
sdcraton support the agreement OF the Common Coun
Gil and entitled the REALTORS 10 its specific performances,
as an agreement within the power Of the Common Council
make and in which their discretion and action IN the
absence or fraud, are hna
single word as TO fraud Two classes only can be de
frauded by sale Of city property by the city author-
Of the city stock or debts and only
tract at the option and instance OF the party affected by
it, follows that the fraud may be waived and the con-
tract affirmed by the parties in interest and not
sailed by them upon that ground its validity Is not af
iected by tie fraud third persons and strangers cannot
the party defrauded and whose interests affected
by the fraud, does not take proceedings by action for
lief within after the discovery OF facts
stung the fraud the action barred by the statute
Code 9) An action for equitable relief other than
for fraud must be commenced within ten years after the
Of action (St 97 More than ten years
had elapsed after the giving OF the deed to Varnum at
the mo the resolution tor the purchase was adopted by
tho Common Council aud during that time several sue
cessivc Common Councils had been elected and neither
the city, any creditor Of the city, had sought TO i'm
peach tho sale and conveyance asserted any claim
adverse TO the varnum title An unsuccessful attempt
by stranger TO impeach the transaction made, but
far have been informed no one having pecunary
tvxsA taCfh nQv rnx IN he mn
IL would seem that the CITY must have been barred by
the Statute Of Limitations from any relief in the prem
ses when 10 1868 the agreement was made 70 purchase
Tho remedy by mandamus was, think, an appropriate
although not the only remedy
whether the proceedings we're entirely regular in
grannga peremptory maudamus IN the first instance IS
not important. was adopted for convenience, ana Is
not unusual where speedy determination OF question
Is desired and nothing 10 DO gained by formal issue
An application Tor a mandamus is, In some sense adj
dressed to the discretion o. the Court but Is the pro
per remedy TO compel q pubic officer TO perform any
ministerial act enjoined upon him by law, ana may be
~ q sne pafcuar aass co vs. the Mayor
OF New York, low. r sos; Van Rensselaer, sheriff
Of Albany cowans o1 Hall vs. Supervisors OF Oneida
There h no occasion for an action against the city for
specific performance for the obvious reason that the CITY
discretion In the matterare entirely willing 10 perform
the contract aud have done all they could 70 put their
after Judgment Of the Court directing the contract to be
performed.
The only other remedy, except BY mandamus, would
BE- BY action against the officer for damages. such ac
tion would be clearly maintainable, but would be
harsh and severe remedy against faithful officer who
had taken the responsibility Of refusal TO act 10 so i'm
portant matter under the peculiar circumstances Of the
case
But ths remedy did not supersede that by mandamus
O. the more appropriate and slcisns
also asked 70 express opinion 70 the right OF
the people, or the Attorney General In the name OF the
people 70 Intervene, BY action 70 mpeach conveyance
Of 1852 and prevent the OF the purchase
Of 1862 am quite confident that there no such guar
him sha aNats iualC0
ration would be implied BY such action. Judge
DEMO Roseveh vs. Draper cited abovc) very clearly
intimates Who and who alone may for relief against
frauduleo disposal Of the city property
Ia the CITY or creditor OF the city, whose pecunary
interest will suffer BY the wrongful act neither an ind
vidua taxpayer nor the people at large have such eal
interest az entities them to maintain an action Judge
lneraham Gin People vs. Lowber) 10 very decided IN his
opinion 70 the same Erect That action brought IN
the Of the people, the City Comptroller IN indivi
dual taxpayer and the Corporation and that learned and
very cautious judge decided that the selection and puf