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

In this instance this presumpon is supported by the
minutes Of the Council The only objection raised in the
Board OF Aldermen action upon the resolution the
day upon which had passed the Board Of Council
men was withdrawn by the director DO ore the final
VOTE that It acted upon by unanimous consent
The proceedings OF the Common Council for the pur-
chase not therefore, liable 10 the objection taken TO
them But the principal objection 70 completing The pnr
chase has respect 10 the title OF the vendors he REALTORS
TO this proceedng and rests upon the alleged nvadty
| 1862, under which the REALTORS claim title.
One objection 10 the title OF the REALTORS rests npon al
commssioners Of ne Sinking Fund for the sale Of the
property. That the power or sale was in the Commits
soners Of the Sinking Fund Is not questioned bns sns
OF the Common Council ana acts of the Legislature con
trolling and regulating their actions and as asserted
restricting their powers The title to these lands was
in the city by chapter 80 Of the laws OF 1887
These lands at the time OF the sae In 1852 under
water.
The act vestng the title to the city describes
them lands under WATER the resolution Of the Commas
the Sinking Fund for the sale Of the lands
be made the eastery shore Of the North river be-
tween the prescribed limits and the grant Of all that
water lot ground and soil under water
be made land and gained OF the Hudson North
river, &c.
the Commissioners the Sinking Fund subject
certain pre- empon rights Of riparian owners, and sub
ect TO such limitations upon their powers are imposed
| by the ordinance and laws referred to.
The ordinance OF February, 1914, which the Common
Council were by chapter 1926 Of the Laws Of l845 pro-
hibited from amending Except by making additions to
the funds apart the sinking und) until the Croton
water debt should be redeemed s relied upon by those
The only direction which could be regarded as lmita
ton upon the powers OF the Commissioners in respect TO
terms OF payment. They not required to sell them
at auction or upon any appraisal by the Comptroller and
Street as was required IN respect TO other
portions OF land under water owned by tho city
The ordinance fixed the minimum price OF these lands,
to wit fourteen dollars for each running foot Of the
westerly line OF the Eleventh avenue and the sale was
for much larger price The sale is not impeachabe for
compliance with the directions Of the ordinance
TO price or mode Of procedure in accomplishing it..
ure confirming and perpetuating it, this sale was
fully considered and passed upon by the Court Of APP
peals in Roosevelt vs. Draper reported in % N Y.R
page 3lS). The sale was regarded as OF lands under
and after considering the proceedings Of the Comms
soners OF the Sinking Fund for the SALE connected
with and in reference to the several requirements Of the
ordinance, Judge DEMO. giving the judgment OF the
Court. says"The only departure from the provisions
of the ordinance which discover consists in the
reservation of interest the rate OF only six per cent
when the ordinance expressly requires that per
cent should be reserved upon all bonds and mortgages
taken upon grants made by virtue OF the ordinance"
The Judge speaks Of the difference between the rates OF
interest required by the ordinance ana that actually re-
served by the bond and mortgage as an "egay" but
does consider its effect upon the sale.
The direction Of the ordinance to the rate OF interest
und for the payment Of the city debt or or the essence
Of the OF sale conferred the Commissioners
h n pSe 3 g nn ne
al part OF the grant OF power The power Of sale might
be well executed, certainly as to third persons or
strangers, or, when collaeray questioned, by
curity for the purchase money might not In all respects
conform to the requirements Of section thirteen Of title
four Of the ordinance, either as TO time OF payment or
rate Of interest.
The city or the public creditors, whose pecuniary
terest preudceo, might perhaps complain and ask
security beInade conform the ordinance.
the sale vacated, II this relief sought within
sonablc time but the would not, think, be abso.
utely void as would be the case or sale made without
authority, or without substantial compliance with the
germs and conditions OF a special power The principal
object Of the ordinance creating sinking fund and pro-
vding for its administration was to secure the city
against the waste mprovdent disposition OF the pub
| lie al
OF the pubic debt by proper pledge Of city property
1t should be construed and effect given to Its various
visions in reference to this principle and obvious purpose
Security to the public creditor the design and
pose Of the act Of ls4s giving pemanency and thsorco
| substantial end TO BIO accomplished was the estab
shment Of q fund for the redemption OF the public
debt by setting and appropatng certain properly
and 10 that purpose The provisions Of the
dinance, which merely model in tner character,
having respect 70 the form OF procedure by the Commits
regulating the details Of their duties, not
cessary be regarded OF the essence Of the grant OF
power or urisdiconal absolutely to nvalidate for
all purposes any sale grant in which, the seem
rity taken upon which, there may be slight departure
from the provisions OF the ordinance which may be re-
garded properly s.drectoryn If this part Of
the ordinance is directory precise compliance not
r. 27sJ If by any departure from the directions Of the
ordinance IN the sale Of property or in the adinstra
ton OF the "snking fund.- the city or creditor OF the
CITY, sslans danger OF suffering pecnnary loss,
reef may be had against such mproviden or irregular
sale or mal4dmnistratopof The iund and substantial
conpance with the ordiulnce be compelled bv q
able timely proceeding by those having pecuniary
interest project But by no means follows that the
OF the Commissioners void, that they may be
questioned aud avoided at distance OF time by those
Interested any time coaeraly or by those having
protect and who take benefit under the
ordinance. strict compliance with the ordinance may
be waived any benefit arising out Of contract
ierrcd by statute. or even oy tae CONSTRUCTOR may
who alone interested Legally and pecuriariy in it's
provisions That It has been so waived by an aclues
Of the only parties who could question IT, for
! than teu years, have no doubt
Whether the would have been set aside for this
hat
scribed by the ordinance had the remedy been earlier
sought by the proper parties what particular relief
| would have been granted, need not be considered
The only parties who could OBJ eced 20 validity
Of sale, upon this ground have waived their obec
| tons. as they lawfully might.
Another objection d that Mr.. Draper at the time one
OF the OF che Almshouse. purchaser,
1852 MI Draper being within the prohibition OF chapter
ISL OF the laws Of section 49, and disqualified from
being purchaser Of real property from the city Rose.
Tho Of Appeals in the cited, ntmatod the
opinion hs. Il The sale was Made Nj, paPe, the gran.
tho Court that the grant would be for that void
II vodaole only IL was capable Of conr nation by
remains valid and operative unit! revoked and annued
by proper authority An omission for long time 10 take
operates 70 confirm she lite u1der H. II would be evi
dence acquiescence which The purchaser and all
s% an se or fss
ration that certain acts shall be void does mot necessarily
and IN all cases render the .cs prohibited absolutely IN;
the party for whose benent the prohibition declara-
tion is enacted The taking Of usury prohibited and
usurious contracts declared by Law 70 be void but
the used in the statute 10 construed voida
be, and the like construction has repeatedly been given
/ 10 other like statutes.
Put in any view Of the law and It's effect upon sale
mado in violation Of lis provisions TO person dsqua
ned by it, II only affects sales made directly 70 an oser
OF the city government sale In which he Is interested
| at the tiu,c
II does prohibit the officers named from purchasing
lands grantee vendec Of the city. lis pur.
the city that In against public policy and
! therefore prohibited by law. II the city has made
valid contract for the sale OF properly not dis
qualified which contract capable OF being specifically
enforced against the city, see why who
could purchase from the city might not become the
assignee OF that contract and claim performance from the
| city.
The vendse In the contract has valuable interest," the
subject OF sale, and hch may be- by his cedi
tors there law prohibiting the sale othat In
any member OF the Corporation other person.
4 In nl0 hpt fav