The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-06
NEW YORK CITY.
THE COURTS.
SUPREME couaT-GENERAL TERM.

SUPREME CuuhI-6tNthAl lfhm
Tpe Stafford Pavement Question ON Appeal
by the City Corporation.
Before Judges Barnard, Ingraham ana Cardozo.
Peter Dolan, Respondent, ps. The Mayor ana COM
y.onauu or Ne,c York., Thomas Stevens ct al COM
ynissioners or the Croton Board, Appelants.-This
A an appeal from an order Of Mr.. Justice Suther-
land continuing an injunction granted by Mr. Justice
Sngraham restraining the defendants from entering
snto contract for paving Seventh avenue from
Fourteenth street to Fftyninth street with wooden
pavement known as the Stafford pavement. The
complaint Is filed by Dolan, owner OF lands and
premises in Seventh avenue, ON behalf Of himself
Ind other owners on that avenue.
1 The respondent and plaintiff through his counsel,
John McKeon, claimed that this court may enoin a
municipal corporation and is bound to interfere to
That the corporation trustees OF the people. have
no right TO impose burdens on them on the pre-
tence OF Improvement; and this pavement, never
having been tried would involve waste OF 100000
OF the public moneys. The allegation OF the COM
plant that the resolution directing the contract to
be entered into was procured by corrupt and illegal
means had never been denied by any OF the defend
Rnts, and where several were implicated IN
fraud the court would insist upon all answer
that the the Board Of councIimen at the time
Of the passage of the resolution had no legal exist
ence, their terms having expired prior thereto, ana
the law under which they claimed to hold once "
virtue OF legislative extension OF tne Terms " 9
tseclon tax levy OF 1867 was anu
was SO declared by the Court OF Appeals Inc prii-
Cple that court must recognize the acI Oh the de
eaect Where Contracts have been entered into, or
where the rights Of third parties were anected but
there was here no color OF title, and where
nothing had been already done to give effect
to a void resolution the Court should not stretch
the doctrine of dc oeto officers. Another ground was
that the contract could not be let to the lowest bid
der the pavement being patented. The resolution
was adopted at meeting OF the Board suddenly con-
Vened at six O'Clock the evening Of the 18th Feb
fuary 1868, the Board having previously adjourned
Ts on o it,
was any doubt the Injunction should stand until the
final hearing as the experiment might cost millions.
and the question OF law involved was OF serious I'm
the appellants claimed thut the pavement was a
good one; that there proof OF bribery and II
there was It a subject Of criminal prosecution OF
the guilty parties and not the annulment OF the
ments the city would be deprived OF the advantage
OF awaiting itself OF many public improvements, and
II the principle as to proposals for contracts were
enforced the city could not employ any patented In
Scnton or Improvement until the letters patent had
expired. The court reserved its decision. 9st
Important Decision In the Matter Of Public
'---.s :, = assessments. --s--
IN he Mafe7. Of Frederick d. 7oIpull 10 Ydcqte
Assessments dc.-ln this case objections were made
70 sales OF certain real estate In this city, for the sat
iefacti0n Of various assessments levied and specific
objections were raised In each case. The principal
objections however, were that under the statute the
collector OF assessment must make alidavit In
form that he has demanded the payment OF
the assessment twice from the owner or owners or
that after due and diligent search and inquiry the
owner or owners could not be found: and, second
that The safes were made under general ordnance
passed In 1919, directing the Street COMMISSIONS to
advertise the property on which assessments are
overdue for SALE The act says that wben such AM
davit has been made &C, and the assessment shall
be due, the Mayor and Commonaty may take
order for advertising the said lands and teDemenfs
or any OF them, for sale.r The applicant claimed
here that 1.-THE statute required OF the Mayor and
the Commonalty judicial determination in The case
and that the comforting OF this power by the ord
nance OF 1919 upon the Street Commissioner was
void, and that the general prospective ordinance
Also null and OF no enect. The Court the close Of
she argument sustained the applicants objections,
and thus an important series Of htigatlons may be
naugurated TO recover moneys paid out OF the pro-
ceeds OF sales enforced under like circumstances
Another Interesting Question of Assessment.
Ia he Matter OF the Application or Cortland G..
Palmer Gc.-The petitioner is the owner OF real es-
tate in this city and made application to the Court at
Special Term TO have the assessment for sewerage
on his property vacated The Court below vacated
the assessment and this was appeal from that
order appears that In 1865 the Legislature direct
pd the Croton Aqueduct Board to prepare plans for
sewerage, and directed that until they should devise
plan Tor such drainage no sewerage should be
peted In certain districts. plan was drawn and
completed but was never finally adopted, owing to
some delay IL the matter OF deciding upon certain
connections TO be made. They nevertheless assessed
the applicant upon his real property on the line Of
the projected improvement. The Court affirmed the
order OF Special Term vacating the assessment 50
made.