New-York tribune., 1867-02-26


IT, ple on the relation n Fernando at Richard Connolly
Controller &C.. &c
RESPONDENTS FONTS. ,
The rclaor appears upon the fling Of TIC return w nc
alternative WriC AID dcmurs ore t1nS 10 ulo @ sHuT H.
yonr return be tre and further admit tlal an 'o m
allegations contained Ia the wit men YOU .cny, W ~
false vet am by law entitled TO the peIeinWol{ VIII,
inon This as The basis of the argument It Is submitted
that the rclator is not entitled tothc pccmpof! VIII io'
Ff: Il s alleged in the return ard therefore stands
as tho admitted fact thai WIN ol y,vVd phi
ont of this Court action whcr2m Chilsupht VIZ
NoI ycri, " r"s nlaintiff and the Mayor Aldermen and
COumOnay OF the City OF NeW-NOtA ana has.,11M as.1t
BrgntHsu, t}r t4nfIo' and foIiiddiag the said Con-
troIler and bis successor aud successors =, W
office from executing the lease IA 9us,r 9uus,"r
or paving the rent here demanded lt Is rglu in wa
10 This that Puman's term of office has expired, anu
therefore the suit has abacd and Therefore Io 's
tot tbe said writ still remains in full force ana Nrlne
This allegation il qualified by the Woigs 50 M t a. i r
respondent has any knowledge" But ths 9ocs ioS nu u
nar The effect of The allegation rs pleading LOT 1t II
always competent Ia qualify an Allegation ny feeItcc
o tG Character OF The knowledge of the party pleading
Ts pGation then FOR the purpose Of this demurrer is
unon e fact that tho writ Is still ia ii iorce
md virtue 2 ON what authority IS 1t claimed tnat 'no
abatc the sutl Certainly not the statute Wncn CI'iI IL
on him the right sue, for it IA not TO be presumed mn
the legislature was ifling with the party upO MON nom
they conferred this right by saying, IL is Iuo .n
nm action brought in the City OF NeW-loik caimOi
i'm tbe due course Of business be brought 10 Iini
under about two years after II - eOmlnencsui U, d
H. n appealed be got through the General Ierm mu
reached for argument in the Court OF Appears i ias
than five years Still, a Common COunCunt.n' 1t'
whose term of service r. but Tor one year Nho NV a M III a.
self of the right here conferred must understand t IN
case he brings sut and his antagonist mahas, 10 ht
i'm Court beyond his period OF oiIee an tla nc s oo
in the suit must go for nothing" But IT Is not necessary
10 state il thus. II j. familiar rule OF iniepeta"n
sv 70 render that right cffcciual is also by necessary
Implication conferred herewith The ilght 10 S M
n suit without right 10 prosecute ~ 10 inc enH M"N If IL
the most unsccmy mockeIy. But on pIAclpo ~
might well be areaed that Gnorfy sGI GfSuSof of
the city OF Ncw-York. would abate 10y the eHpra'
tion of the term Of office OF the May or & Yi ,i,nc
men, But were il otherwise, mo sun ~ NlnTh t"S a.
tion was issued is 6qit sudan injunction lsAuS ~
other IL is Of very familiar khoWgHso InS @ Viii Min IN
euuy suits only the effect or susicndhS ho pro
ccedngs which bill ofroyyor under the od pracuce an9
permit the parties 10 proceed as before MAJ III. f uy
jeremy 81 stoup Ia. P, sec a5i II never Wa 'ia.
or m lar as is known sugg stcd that even tho hhtura
death Of plaintiff in an equity SUIT Woud a. 49,
death be for moment listened to by court upon mo
ton for an attachment ~ for contempt Tor dsoDe!hB
injunction. Edcnon Injunction p lhs.l . 80, oc,,o,
second The return sets forth the pending of an h,3n
in this Court In Equity, brought by thc t9poi"on % Ho
civ OF New ok against hm COntrolci, to sci ASIDE
The resolution IN cue,liun aud declare IT. nun and koi
and to pcrpeiuay restrain aud cnlon t.o 1 - 'ouCv onv
as nd I.I' ,%ot tie spmc WIS frdul,ntly pro
% gIDuIu and anroytJ II anything he settled Il
tied past dispute thaIwhen court oi competent laI'u
ion has got Jurisdiction of any matter Of dispute such
Jurisdiction Is tIciustrc against al cogmfancc oi sueh
matter by any court whatever, in any slit q" pof'Nts
which may be thereafter instituted 10 THE principle u
nas Of Independence So universal is IL that pr,v5
by the supreme Court 0f the United states a. principle
of ooDig IN The Gaze u Taylor agL carry! 90 STOW '.
the sheriff had seized vessel under ri4, lment l,'n"
ont Of q State Court; AFTER that Marsha" ','An .l.
same Ncs-c. under hn atta'hinclt ,ad'l GU. oi -"
states Court Ihc supreme Court h.u ,','. - W.
Court had got jurisdiction rst, the United rtat', onil
ought not 10 attempt 10 get jurisdiction 90, .
aside The arrest made hy tho Marshal rs void
But Il disregard To this rule OF jGrTTuirI'e Nou' J..
every maEIhAbic case no most Al.',", -. o., i'- ,
only to conflict OF jurisdiction, buy to hc h"-' On anu
iue4trcablc confusion. No cas-, VIII Illustrate tn. DOT
ter than the pr,sOut ID" '"il"i t4nH tll, o. w." 80
aside what D. claimed tl De contract Tor ifahu l'Id
ing the action, the defendant, upon notice ol eight n'ys
brings the complainant before q JudEo ~ 'nA.I
bor. demanding an execution oi Inc con
tract and payment Hereunder The relief tho torpo-
ration AK il attaaDc o"lg pa bul ia tlu,1', -, -
bill filed 10 set aside pretended contract Tor laud ~
may deprived of trial ia that Court by the summary
relief attauauc upon the return ~ an aicIAulc
rcatOr 20 Dee granted, DC may plead these proc a.
hgs pt'is darca coninH4"oe lh thai a'uon a. "a.
Court whero alone such wrongs us ~ coLpihH 9I ui'
cognizablo aud reurnabe. The human mind sh1nkA
from such spectacle OF perverted Justice. That The
doctrine here cOhtendcd Tor IS applicable as "eh
IN Of alternative mdldanuS n' III
OF Ecx ap Dr. Hay, Bun, 2,9j Tho u'g et"ns tAAt
the complaint - not sworn; tniI & no one aaiS & s~i ~
r6aroc, ~ bribery ana corfI lon are made th,n-
selves and hence that the Corporation COunac brought
M to be made here ThlS j. an argument upon
are admitted by the demurrer, aEl That
alleges that The action was brought by the corporation
and that sti pending II could bc made 10 appear
here that the complaint not sworn is th'ic any law
requiring complaint to be svorui And TO au author
Izaton Of the suit by the Common Council, does II
could ~ be made 70 appear on Tho arRuu'm ,ot
IL is brought by the head Of the Law Department Of
the city, who charged with all tho legal duties that op
pertain to tho corporation and, OF necessity not only az
liberty bat bound 10 act In his own discretion Ia al such
matters lie requires 40 more 90 be instructed u Tho law
business-thc brinnug and defending OF suis-by the
Common Council, than the Common Council requires 10
los instructed by him In matters coming eAclu-
We're it oiherwisc- that suit been brought
by nonofcia attorney, his right 10 bring II could be
questioned by no one but his client even IN case II came
directly In issue, unless II should be afhrmaycy shown
that he was pecuBiaiily iutspOnAibe. To what pass
must counsel De driven TO raise question ~ that kind
here cOllaeraly the argument Of demurrer, when
no such fact III any wise appears John Rep, 2JC;
third There being no statute ordinance imposing
upon lhe Controller me Nuy oi rene","g edtt o any
similar duty, hc could not be compelled even Al tle SUIT
Of the Common Council or BY tho Corporation Itself todo
the acts by the alternative writ required, much less
ne Do cohI"Hcd 10 40 80 py an inul"uual or mere
stranger, 10 whom he owes no duty or allegiance
whatever. That such duty Is Imposed upon
e respondent by Jaw or Orulhhh'o appears Io lhe .ot
that no such aw or ordinance cited by the counsel for
the reatOr II there be such law ordinance existing let
tbe produced We aver that none can be found The Only
illusions 10 tho subject that IN any way bear upon are
which is as follows: lie tthe CONTROLLER shall
all grants, leases, and countcrparts OF leases,
proper books 10 be kept In his office" Thereby clearly
implying that the duty OF erecding rests with the cor
reference leases confined 10 the recording them In
proper books TO be kept IN his office Again. ssctiOn 80
Of the act OF provides that the Clerk OF the Common
Council shall keep the seals OF the city and
his signature shall be necessary TO all leases grants and
other documents, az under existing laws" From which
It appears that the Controller has power 10 obey tho
mandate OF the alternative writ. namely, 10 "eXccutO
and deliver" the lease demanded Thus portion at
least Of such duty is by tins express statute con
ilded to another funcuOnary. II tho Controller is
bound by law by any general principle OF law to do
tho work assigned him by the resolution in question then
by the same general principle Of law he is bound to do
iYe taI Isa
No ono viii pretend that the Common Council has any
such power any other czon And II any such exists
over The C0ntroer II shOnd he clenTlY shoMn