The New York herald., 1871-11-14

Commissioners OF Estimate and Assessment Tor such
widening and strengthening. The Corporation Coun-
eel accordingly applied to the Supreme Court at
Special Term, and three Commissioners OF Estimate
and Assessment were appointed, who proceeded to
hear ali the parties, according 10 law, and made
report awarding damages 10 various per.
sons whose lands were taken, assessing the ex-
pense upon the lots within o certain district
specined by the act. their owners, and
also awarding the amounts which the city should
receive from parties owning land fronting on Broad.
way and abuttng on any part OF the present street
closed by the act OF the Commissioners Of the Central
Park IN laying out the improvement for the release
OF the public interest. The report made was con-
armed upon notice, and after hearing counsel for
che various parties and also the Corporation Coun-
Gel representing the Mayor, Aldermen and Common.
atty OF the city Of New York. The order OF conilr
nation was entered by the Corporation Counsel on
che 2Sth day OF December, 1870. NO appeal was
taken from this order OF confirmation nor were any
steps taken TO impeach it In any way. On the 27th
Of February, 1871 the Legislature passed an act at
tempting to authorize an appeal from this order,
ana also motion 10 De made before Justice OF the
annul the awards ana ali the proceedings. This
sf the Judge hearing such motion, II 1t snail an.
pear 10 INN that there was any error, mistake,
the asse essmens OF awards or any Of them were
unfair or unjust or inequlGable or oppressive as
srder Of confirmation and refer the matter back 10
the same or other Commissioners. On the l1th or
March, 1871, the Corporation Counsel gave notice
Of notion under this act, to vacate the
order confirming the report OF the Commits
Noners which had been confirmed on his
motion on the 2Sth OF December, 1870 The mo-
taOn was heard before Judge Cardozo, who granted
m order vacaIng and setting aside the whole report
mistake rreguarty and illegal acts In the proceed
1ngs and that the assessments for benefit and the
snd as respects he Maxor nermse
ond ComEonalty or New York and others The
order appointed q new Commission, consisting OF
eWO persons who were not members O; the former
Commission, and one OF the former Commissioners
and directed them to make an entire new assess
1ient, both Tor damages and benefits. Mr.. j. Watts
pepeyster, one OF the parties To whom compensation
had been awarded Tor property taken by the open
ing and improvements Of the street, appeals from
ARGUMENT FOR THE ApPEAL
Ex-Ju0ge Emott read q lengthy argument on be-
han OF the appellant He lnsisled that order OF
vudge CardozO was appea!able, and that the Court
LEGISLATURE had The consituuona eower 'te 10
pass the act OF February, 1871: and, second,
whether the order made by Judge Caroozo Is just
o. constitutional exercise OF any power which the
me order Of December %, 1s7o confirming the Re.
menL appointed under the act OF ISG9 he insisted
was the 1nal adjudication and order OF the supreme
thaL report could have been made either ut Special
or General term. The appellant made no complaint
alleged In any or papers or proceedings to have
been affected Dy any error mistake irregularity or
uiega act or TO have been Unfair unjust, inequi:a-
act OF 1871 assumed to authorize direct Court
or Judge arbitrarily, without an appeal IN due
course Of law, upon anidavits not served, to set
aside q Judgment or judicial determination In
lavor OF parry, TO grant o new trial and
txaior- Ii tns could be done In this the Legis
laturc might authorize any judgment taken in any
ment TO be vacated aud set aside, and all rights
acquired under 1t destroyed upon u motion heard
recognzed BY Courts or Judges in this Stale On the
contrary, IL has been expressly denied whenever
asserted or claimed. the act OF 1869 and the pro-
nioners the award and its confirmation. including
the actual appropriation OF the street by It's opening
as directed by the Commissioners on the day nxed
by them. constituted q contract which the law and
the constitution authorized and compelled the land
owners TO make With the public, and which, IKE
al other contracts is entitled to the protection OF
the constitution OF the United states and Of the
Of tne cy " Sew yorK a. ps rstae ns r
the puoiic not only agreed TO, but did take for pub
Nc use tne rand OF the present appellant. among
others, and became bound TO pay him the amount
nxed by the awards OF the Commissioners. Such
contract s within the protection OF the constitution
~ the United states and any law authorizing at
tempting to authorize any court tribunal arbiira
rly 20 set It aside, or any order annuing It, Is an
interference with vested rights and violation or
the obligations the contract. The award or right
- the amount OF damages awarded TO the appellant
vas MS property as much so as any money or efecss
20 which he Is entitled by contract or OF which
he is possessed. lie cannot be deprived OF
this property, except by due course OF law AZ the
70 do, or should have done, was 10 vacatc such
Awards as were shown TO be fraudulent or unjust.
The order OF Judge Cardozo was therefore IN cx-
cess not only Of the constitutional power OF the
Legislature, but of tae statnary jurisdiction con-
1erred upon him. The act OF 1871 docs not authorize
m application tor It's benefits by any party except
the Mayor, Aldermen and Commonality OF New
the % act valid to any extent i
uevidence SHOWS that lat any stage OF the proceed.
ings there was error, mistake, irreguarlty or
assessments were "unfair, UNJUST inequitable
or oppressive Now, the action or the
o G the he mas s ehep rser Ra
back the matter to amend the whole report and
assessment or may direct commissioners to make o
new assessment ia the particulars specified II the
proof establishes unjust or illega acts affecting the
ewards, the Court supposing the act valid might
adopt The first course and annul the whole pro-
ceedlng But H. a IN this case, the proof submitted
was confined 70 illegaiity IN the assessment upon
the property OF the city the city only complaining,
or being authorized 70 complain-ony that part or
she report Affecting the city. or assessing the prop.
sry d ,ne city. should be reconmllted at any rae
NO more OF the proceeding snould be or can be sup
posed 10 have been intended TO be annued than
wAs necessary TO correct the special irreruary or
ciusion reasons for altering vacaiing the awards
- 70 Inc city, but there was none ior annunng the
ARGUMENT AGAINST THE APPEAL
mi. vanaerpoel, on oehaif OF the city, made an
order. The FIRST point he raised was tnat the Com.
missioncrs OF Awards and Estimates, Ia Imposing
the assessment OF $,617,sT9 against the Central
Park Commissioners was Irregular, illegal and void
II was irregular, incompetent aud Illegal, he
stract mad pecn Iiled in the onicc Of the commis
Uoner OF Public Works, without notice TO the Mayor
Aldermen and Commonalty, and an opportunity OF
being heard before commissioners and before the
presentation OF the report to the Court for conDr-
mauon. HIS second point was that The Com
nisss0f,crs had no authority 10 reduce the
awards made 10 the Mayor, Aldermen
and Commonalty. His next point was that the
commissioners were mol authorized 10 amend their
report nfLer Ming abstract by charging any pOr-
non oil the expense OF the Improvement on the
MAYOR, AldefkAen ana C0mmonaIty lie insisted
thai tine iacts exist as 10 this assessment not
nupaaxlnQ noon Lac aDsLIact hed lu The nice Ot the