New-York tribune., 1867-02-26


70 he facts upon which hs must be dccided-aleges
froIn which IL Is claimed that the contract OF lease
was perfected are in fact but q part of certain
thT corporation which bad Heretofore begun ana were
carried on for long time thereafter. and that the same
sion G any contract To lease the said premises II then this
allegation studBgas the truth Of record doesno demon
The ease oil the respondent within the conceded principle
of law above lgd doWu, then there s no language 10y
to fact, outside Of the record by which the truth Of the
allegation could be maintained, II indeed issue Lad been
tacu upon instead by demurrer
The OuiOn In its very terms SHOWS tat no contract
was made. but that further acton was contemplated on
completion OF the contract was contemplated Inc Con-
trollcr IS directed to renew the lease when implies
making Of lease-the rate Of rent. and the term
of wears was giyen-nOthing more. Were tie various
Other terms and conditions OF the former lease TO be IN
cluded In The Olc The resolution silent upon TINS
subject bat the writ shows that they are included III the
leases rendered. The language of the witt IS tnat he
caused leases TO be prepared l conformity run He Me er
g leases except 10 the amount of rent reserved and
the term Of the duraion.p Did tho Common Council
assent 10 such cOHfOy The resolution does not assent
TO e. Did the Common Council consent TO- or direct thc
execution Of Leasesl The resolution speaks only OF
ty and The number Of leases left to the discretion OF the
Controller by the Common Council II so. It Is open TO
ton Of an officer, a ndhdalhlS VIII not nc IN dlo
nrene Court held that Z" nandamus can only issue in
cases TEcre tie act was merely ministerial ana win re-
gard to which noh hing Ike Judgment or discltion IN the
nrormauce Of his duty il left 10 tho officer" II Is not
py clear BY tire very terms Of the resolution that the
Common Council did not undertake to make the contract
of lease but only authorize It, but the very language
of tie city charter puts this cOnnructlon upon IT, sec
tion provides that all contracts to be made ana et
by tic authority OF the Common Council, &c, shall DO
made 10y the appropriate heads OF departments &c IL
is very clear that this authority should have been
lot 20 the Controller, and that such heads Of Department
have most ample discretion eann0t De uGupteu' h,
DOING IT, TO authorize the renewal OF lease is TO ac-
tualy IT, Is not claimed even by inc rcatOr III hs
oaofa fntfh fIut le n
sand proposal for the renewal Of the said lease &c ana
that the Controller refused 10 execute the same IL has
ch0ato aud that mandamus would not issue TO compel
officer TO execute them-Pe0ple aGt. Cana bGiaiu'
Barb 49, IN which Mr. Justice Cady cites aud reyie"sa
6. II The contract be complete and not ncoate and
nc0apec the rcator does not need the aid Of writ OF
nandauu hG has hs action at Law Tor to rent OF the
premises. II thcro he any other remedy mandamus
will not bo granted. y Cow, as lb Mcnd, DO, IL
J. L., AZ; Cow, 42j; Il Nend, 25 Hill'
2 2 ,5c dBiroc @ - be- pcSS %ss and not eomPee and
perfect mlndamus Will not lie to compel a officer to
complete H. See cases above eitG, ana ai'o ~ ~ h l9
perfect aud complete contract Of lease, action viii
III for the rent and there is no reason why mandamus
should not issue az the suit Of any other person against
any Other corporation person for the payment OF any
other claim a. well as for the yent Of this claim for
rent uf tho premises In question
sinh. Tie statute provides rs follows: All moneys
drawn from the CITY Treasury shall upon vouchers Tor
the Auditor, aud approved 3y tue Controller ana iled IN
auy voucher FOR the expenditure sought to he
obtained by Irrnptory nnidanus has over bech cK.
such voucher has been approved by the Controller or
filed IN hi, office. The warrant now demanded cannot
be drawn without clearly ening TIE poNs0s oi
tins statute Il may here be observed that, any doubt
c0uiI cNst to The dra. INK OF warrant by the Con-
trolor being act upon Lch c has discretion 10 be
,scrcled ~ would be- put 10 test by This provision Of the
statute; Tor The words approved by the Controller
matter II viii not bo coutcndcd by tho counsel for the
rclaor that an act concerning which the officer as az,
Sect ~ tAr tid chapter II the Revised Ordinances
provides 30 i..oNs s.. NlI h" ,,n NIa'n' Sl''r IN ,n
drawn u.,' tle sum s ,l'1ea tH'i''' - 90 "a III
previously ln1de t.r tHat Put,
warrant now drmaLdrd can br drawn 10y tle
Controller, the Common Council niust have oy vote
81 hoiA of is branches ai"pited th, 'un n,I,', ~
tac purpose "i thc E5 mcnt "i lI. 'lil ~ oa
Do RIu Iui only mako himself personally hdDlc Tor iAe
dcmcluor Tor thc act Tho Com. may u' h'o Il'.u !
that h rslaur fails upon ans ono branch Oi hs chn
la How ~ The tci."h "i thc rue ~ tha. tLo ~
Iercmptoy wit must follow the Gltcrna'c wtit ana IL
Code has ob' aiod this objection ahd allow tne HLy 70
strike ont aud amend a. ih other cases Inc Coa9 TO
been held thai 10 do.- not n any OF IT. proyisiohs eh
haucc rcgulc oG rf'r O proceedings OF at character
Nft6W 0t'h portions uI llc WIZ ~ r no' 49,,
by thc return either expressly or tacl. must 0o taken
Doe deemed be stricken out. In the absence.
them Of thr allegations that may be deemed 50
aside even fpm all the Affirmative matter sct ny
Inc ucfllNc Mrgtl lohs Nrir mere usIilh9 "l
they dd io' hLs hp eject 10 pr the ale "h' =" to
taken 90 bo admitted. 10 THIS 10 j. rcpllcd The claim In
question IS = taim not agAinst tho respondent 3ut
against the turaiion Now, ought not 10 br rtthu'u
that q CorpUratbn admit. an allegation simply because
party }, able tc-lrct Of It's officers who Is not able
tp say upon hs u.iI oath that the allegation u untrue
II moEy D, To cakcn from ne nc4f'ay oi aeoilo,o.'
10 ought obc upoi a!c CATIONS That arc true W point OF iA,
and rot upon alterations o which one particular oihrer
OF the Corporate, has 10 owcgc aud therefore % J., un
abe 70 dch{ IL present ton'o,t has D,gn III ro'
khuN coHc'tllE hc hihl,is lii - 80 ia
fOr some reason wcd until the Controller VINO was IN
Once during me PROD IA question anu; % 'oN 80 % @
kho" concerning ticn' hat pa,s'I Vu' ~ olNo ths
he claim, rs uo reward of his delay ihht ue |
Corporation aanlt what tho present Sohttoloi |
cannot deny Ihins rather qnes'lonaplo nhaPoI Io
party 10 ntoourt n, and ash tho bcnrt not Yi
wit Of night but n high pretogaIe "nt, Hhch S u |
addressed 10 the judicial discretion oi he court ps'
upon clear ana uquc,onnblc rght Tor Nhon th.luis
no Other adegnee nnedy known TO the w Mh W. trne so
respondent D, able Ia admit may DO taken az u",
admit for wan Of knowledge concerning !! |
a corporation OF Will he 4, but an officer A corpora
ton composed not merely OF the officers that conp1so
It's organization, buff every voter ana taAp9sl Nno %
it ale glance anCwhon antagonists, ia hlgh Iau
datory phrase eKculnto the official corps OF the cty
charge I t %ipm0 upon m uaaas%ed lsS Interference OF
the Citlens Association. and the me ihSma,i sInrd
he treasury aud from The % Pushing pSSS Weight
Wlch seems impending they forgot ior whom I" ~ |
Government orsaniZd, and for whom II should oAb''
or "ofe'st al GH Respectfully sunmiited , corr.o
UNITED STATES COMMISSIONERS oFFICE-FEB. as
Before Commissioner WHITE
THE AUSTRIAN EArIAETIoN Casa FURTHER POST |
MENT
are the RItradto Of Adolph william Schwartz
This case was 10 hare been resumed yesterday af- |
tcInoon but the prsonc still continuing m the further
examination was postponed uStil Wednesday next, ut
O'Clock y. IN.
COulT NOTICE