New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1864-03-14

ground validity is not affected by the had Ihni per
II the party defrauded and whose interests are effected 1y
the aud does eo s ~ ts ;s e6 ,Ti he
rI he con il barred by the statute Code, 9l An ac-
ten r equitable relief other than for fraud mus, De com
enced within years after the cause Of ne action eccIue
ISL on More than ten years had elapsed after the Yln3 oil
the deed 10 Vanum, ct the time the resolution or VIC
time eversl Successive Common Councils lad been elected
and neither the city nor any creditor Of the city had sought
mnIlch The ao aud Conveyance asserted any claim adj
verso 10 tho Varum title An unsuccessful attempt ~
stranger to reach the Transaction made, but 80 lar as
been informed no one hlvn. pecunsry interest to
n ould eem that tho city must have been barred by the
eat Of Limitoon rom any relief in the premises when n
1863 the agreement made to psrchase tie ands q TIE
The remedy By n1anaaus was think an appropriate, H.
Whether the proceedings were entirely regular in granting
peretcry mahdsnns In the first instance important
was adopted for convenience and Is not unusual where
speedy determination Of question is desired and nothing u 10
Vy adrsea to the dcreon Of the Court but
is the proper remedy TO compel public ocr TO perform any
ministerial act enoned upon him By a and may Dc u ~ Ics
particular duty people agt TIE Mayor Of Now York 10 w.
r. 35; Van Rensselaer, sst Sheriff Of Albany Cowan, S
There no for action against the city for pe
eGc Performance for the obvious ason that the cry spth9r
ies.the Counciyh0 alone have any discretion in
the matlc.ago entirely willing g. perform the contract and
have done ell they could put their agents Tie city oheers
directing The contract to Re performed
The only other remedy except by mandaan would % ~
clearly antainabe but would be harsh and severe RENE
dy against faithful officer who had taken the responsibility
Of refusal TO act in important matter under the peculiar
circumstance. Of the case. ,
Bat hs remedy did superede tina. by andnmus the
more appropriate and efficient.
am also stcd to express an opinion the right Of tao
people, the Attorney 0ener in the OF the people 70
intervene by son 10 impeach Conveyance Of 1852 and
prevent the contamination tic purchase Of 1853 am quite
confident that there Is no such Or eoIa I
such action. Judge DEMO On Roosevelt ast Draper, cited
abovcl very clearly uimaes who aud who alone may sue for
lief fraulu
the city, creditor Of the city, whose pccugafy IN.
taxpayer people large have such legal Interest
title. them TO maintain IN action Judge gaham in People
AZ decided IN his o0Ib to . the Ii i ei ,G
h. syned and y,ry eaaIens de deeded tkst The 1eec
ina d b nu ~ market Wa eisistiye and not an
executive act and properly exercised Ey tie Common
Council, and tho plaintiffs, including the people, were de-
true tho Judge 'aZsn fubs;ancc tina, II b. con
ceded that the Attorney General may maintain an action in the
name the people restrain afnunicps corporation II
only be to restrain them from making fraudulent OF lie gal
disposition Of the city property and in such ease the fraud
ton that such action may be maintained.
Certainly the creditors who can have relief in their own
name proper case do not need sud not entitled 20 the
Intervention Of the people Attorney General in their
behalf and municipal corpo alton s in no sense the ward Of
the State and like every other artificial well az natural
person only have relief against the mprovdent or Faudl
lent Of its agents by action in its own name
think tho State rapnot maintain action TO review ana
control the action Of the Common Council In tho purchase
sale property which has general power to buy or sell
l. That there was rrcsalarty defect in the proceed
ngs Of the Common Council and the adoption Of The esoa
ton for the purchase Of the lands In January 1863 and that
good aud valid in form, was then made for such
purchase. ,,,, 49,, ..,o.o ,,.,o % ~.
land. sold under the conveyance Mr. Vau, subject only
the membranes Of his mortgage and the unpaid taxes and
assessments and that the tile not IN the cry Us against '
yarnum and his grantees.
That tho sale and conveyance under which the realtors
the of six per cent instead Of seven per cent
or BY reason appearance Of Nh
under A. and the grsnt 10 MI Vaum passed the title without
tie assent OF M Draper and + in the relsoEs il / wa,
merely yodabe In substance and effect vacated end
the grant annued the act and consent OF ell tho parties
H. and the parties in interest and Mr VanuDi substituted and
IT, for any defect, regulGy Noncompliance with the
forms prescribed OF any other reason ne ana
the remedy probably barred by the Statute Of Limitation
event Che long delay ard seau,:esHse COIL ;; strong syI
cure any defects irresulAes in the transaction.
That while the REALTORS mi ht have action against thu
city for performance OF against officer Of the city for
ages for refusal TO act In carrying into effect The contract
the p,oee Of Iand Ia proper and The mot snp,s an
Z Willie proper and probably The duty Of tie Comp
could be had by proper tribunal is no, his duty further
gate in my judgment there no probability that IN
judgment. Of the Supreme coa would DO reversed By tn
ss e :s as. e. Of s:s
party tie Transaction aud that brought
.iay the action OF tie city authorities.
ii stay Of their preceding Is desired the parties pros
IL one can obsned upon the granting of whih proper in
denny would be given to he parties who would sustain in
jury by their delay w. b. ALLEN.
! New York, Feb. 20, 1904
y.uScEr dovSRIT No. 20 WALL STREET,
kEw.ioRE, jan o. 1904.
SUPREME COURT
Tho P.ople ef rel James u. Taylor ct al, " Matthew T.
Brennan, Comptroller, &c.
nkrrHEw r. BaTSSAS, esq. Comptroller 6c.;
DElR sIa: On the 3O. Of July last served you eer
6ed copy Of the order Of the General Term Of this Court
affirming the order OF the Special Term In ts case aud direct
ing you 10 proceed comply with the peremPtoy hGndann
which had previously been served on yon believing, ron
the nature Of decision Of the General Term that no uhe
litigation would be necessity my clients directed ne to sus
pend further proceeding. against you 10 ~ ord arraona
BE time 10 prepare and execute the bonds. Atcr delay o
several months called you the % inst and demGde'
the bonds which my clients entitled 10 receive. AS ye
YOU have given NE no response 90 that demand.
II g. of course, no, my province TO advise you what MAJ
be the Of your refusal % comply with pccmp
tory maudsmus from the Supreme Court. II Is sufficient io
me to say that your delay may prove productive Of serious los
10 my clients They will therefore feel justified In resong
the vigorous 20 compel yoH to perform you
duty IL ir not probable that the Court Will ,reat lightly you
contempt OF its process. Having waited what Is certainly
sonabe time or you DO what their decision requires
YOU Instructed TO apply ior an attachment aguins
you unless you nme tiaey deliver ~ my clients The bond
which they entitled 70 receive.
1t viii then rest with tho Court to administer such punish
be necessary 10 enforce obedience TO s process
Added this my clients viii hold you personally responsible
tor such damages they have already sustained may
tain by delay As your duty Is purely ministerial Their,
Cannot be shy d9ub, about your liability,