The New York herald., 1864-03-18

common council the diincuity which experienced in
the matter took occasion TO state TO them the questions
which presented themselves to my mind, In n communi-
cation setting forth The Iacts connected with the
action, and to which would again beg leave 10 REFER
(Pro. Board Of Aldermen, vol SO, PIP. 167, 1857
A tender Of . deed having been made by Mr. Taylor,
with demand OF the consideration in view Of the facts
stated by me in such communicative did not feel usk
6ed in completing the purchase
Mr. Taylor, accordingly applied TO the Supreme Court
for writ OF mandamus. TO compel accept tho deed,
and to issue the bonds as directed by the resolution
The Supreme Court has sustained bis Application both
Special and General Terms, dissenting OPINION how
ever, having been given al General Term.
- h m % =, re appea ~ nenera Term appec
the charter, for his advice further PROCEEDINGS
view Of the importance Of the caso Mr. Deven request
ed authority which was given him, 10 tho Hon.
William NJ Evarts az counsel in the consideration OF tho
annex the opinions of the Counsel to the Corporation
and Mr. Evarts, which were received by me on Deem
Pending the consideration Of these opinions BY me pro
ceedngs were taken by ine Attorney General IN tho
OF the people OF the State OF York tho
title OF the alleged owners OF the property question:
andcontempating the application to the supreme Court
for an injunction TO restrain the completion Of the pur
chase.
/ OF this suit concluded with the approval OF
the Counsel TO the Corporation 70 refer the whole
ton &c the Hon. William Allen, late Judge OF The Su
preme Court, for his opinion and advice
In my communication TO Judge Allen give detailed
statement or the proceedings taken by the matter,
to which refer your honorable body for further norma
tion IN the premises.
The opinion Of Judge Allen was received by me
February 20, 1854 and is annexed
nave taken action the matter since the receipt
OF Judge Aliens oplDloB. Respectfully submitted,
MATTHEW I. BRENNAN, Comptroller.
Cry OF NEw YoaK, LAW DEPARTMENT.
OfficE or COUNSEL TO TIE CORPORATION.
Hon. NJ. + BRKsNAx, Comptroller &C.
DEAR SR-As the year is coming TO end propose TO
return TO you certain matters which you have desired
my opinion and which, owing to their gravity have
tanned for mature dellberation.
OF these the rsl and important the case Of the
The People, ex rel James Taylor, against yourself In
pursuance Of my suggestion TO you time ago, which
submitted w hal
the points OF the various counsel engaged in the to
opinions You are aware that the Supreme cour al sne
cial Term and afterwards at General Term adjndgcd il
TO be duty 10 fulfil the directions Of the resolution
OF the Common Council relative 10 the purchase
Fort Gansevoort proety Abr. Evars In the enclosed
opinion you will perceive, comes TO the concusn thas
the Judgment Of the supreme Court would re-
versed appeal In supplemental opinion he also de-.
caree that you would be personally liable all
which might be awarded on an appeal, nasmuch you
would be IN the attitude Of officer Of corporation
fusipg 70 obey its directions
by Mr. Evarts the whnle subject. and In your
personal responsibility the premises. not pre-
Of the Supreme Court. Nevertheless. II yoa should
think your duty 10 proceed further in the matter il
justify IN double the amount Involved, and the matter
takes this course. can only say that viii spare
labor or pans 10 obtain reversal Of this judgment, and
&c protect you from personal loss. Yours truly
JOHN E DEvEflN,
Counsel TO the Corporaton
cory OF MR. EvARTs' OPINION
have carefully ned the record in tho case Of
The peoHe. ex rel. &c, VS. Matthew 7 Brennan Comp
troler, SC, submitted % with the points ooulsef
for the REALTORS and the respondent and opinion
Of the supreme Court (at ra term and have given
attentive consideration TO the question submitted 10
"wheher the prospect o. reversal OF this Judgment
upon appea such to make such appeal suitable"
There would be but two points 70. be det,R-
mined for rigni conclusion:-
Fst-Is the Tor the purchase BY the cofpjr2
tion the real from valid law, aud
capable Of enforcement by judicial proceedngs9
Seconds the proceedings by nandanus appropri
n n nrQ.1a 1aH a fur q Ont pmGnt
u both the questions be answered in the Affirmative, no
reversal q the judgment Of the supreme Court could se
expected upon an appeal other OF these quest ons De-
otherwise determined an appeal would promise reves
en-. OF the judgment
prretsse these lands Tor the public OF Market
the completeness and validity of the contract forth
the record 10 accomplish int object
ns course. material that. IN taking the deed ten
dered by The vendor 10 performance on hrs part tno
vendee should acquire good title TO the properly sub
Jec 10 90 other membranes than those which the
tract mentions 4
Beyond this, ! perceive that any inquiry ro.V
specng The state o. the title anterior 10 this compeon
u contract Of sale by the delivery Of deed vestrg
title IN the Corporation can be material 10 the rights Or
the parties
any view that can be taken Of tho objections raised
&c the title rendered by the vendor cannot perceive
that they cast the least doubt upou the title which
the Corporation will acquire by the delivery Of the deed
iendcrcd
only defects suggested relate TO an adverse right 10
the property Legal equitable in the Corporation ITSELF
The mere statement of these objections shows the re-
mova every imaginable defect upon the delivery OF tho
deed ty the vendor aud ne acceptance by The yendee
little n dispute between two claimants may certainly
be made sub and purchase from one 10 tho
other, well where such dispute exiss II FOL.
lows then that the realtors have right to enforce This
con,rac, against the Corporation BY an appropriate action
d this be so, is the duty or the ministerial officers OF
the Corporation 10 perform all acts necessary and
10 the iulhmeni OF the contract Its pafs II the con.
tract be enforced by action II q violation Of Official
duty their part 10 withhold performance
IT, then the Judgment of the Court has rightly settled
the obligations OF the Corporation fulfil the conlact
and the power OF the realtors tc compel It's funment by
ig pf ftn fttN
Corporan 10 do al acts imposed them It's agents.
in performance OF the contract {, cannot be doubted
that the iudenep, OF the supreme Court has so deter
mined and IN my opinion, correctly No reversal or tho
Judgment Oh this principal point can be expected from
have stl 10 consider however the question whether
though the right OF the reators complete the partcn
lar remedy OF mandamus Is open to them for s enforce
ment a
Ipop this point, also, ! and no difficulty sup I
ppInne pp5s 's ana spon tho a@horiies cited IN "pSs
argument aud assumed IA the opinion Of the Court.
u seems impossible 70 eon.eno mat the rela,ors,
lion need enforce by action against tho Corporation
because the Corporation officers refuse 10 perform their
duty TO Il in discharge of It's duty TO the REALTORS TN
douhtedly the resiors might resort TO against
the Corporation aud The atcc be driven 10 mandamus
against It's officers 10 protect itse and satisfy tho
claimants am Of opinion that the law docs not com.
pei such crcuiy or proceeding and that the Judgment Of
ibe supreme Court on this point cannot Be esrse.ed 70
NEW YoRE, October Q, 1868.
No. 2 HANOVER STREET. lee. %, 1853.
MY DEAR sR-I am in receipt OF your favor Of ,his
date 10 which you call my attention 70 the fact that IN
tho onn,on when have given upon tho case
submitted 10 mo In tho nandamus against the Comp.
rocr IN the matter Of the Fort Gansevocrt property,i
roers abiuy personally Tor tho costs Of further oppo-
sltiop TO the Judgment BY appeal.
n IN oue true that my former opinion was confined 10
the merits the case and this incidental point escaped
my attention.
mus though Official person, for costs whom judgment
gocs against him. thers can be no doubt The result Of
the controversy determines that his conduct brought
question was NOT accordance wh ofca duty, and no
must answer for u personally.
oppoee party should be relieved By The body whose
interests he had assumed 70 represent, would be wholly
Al its discretion, he would have no legal
upon H. Especially would u be 90 IN this case when the
corporate action h what has been opposed by