New-York tribune., 1871-10-12

does not show acts and circumstances showing right 70
como into Court He has right according 70 the
action than II he alleged that he was subject OF HSt
Majesty Queen Victoria There Ia another point which
circumstance enough to frame complaint and they 90
not need anything beyond It, II states the amouns b
money which has been taken from the treasury, WIN
obtained IT, and upon what prcense 1t was nbtalhea a.,
Ex-JudGe Fullerton read Judge Barnards ophion. 49,. l
Ha 70 Of s"uw c it nW a of @ 1881 and Claimed
Judge Barnard must have held that le couiu ihain'"
the action at common law.
GEN. BARLOw's REPLY.
Under Section ssi OF the Code the defendant by MS
counsel. comes hero and raisos various objections 70
going on with that examination. He haS raiseu nup-
stantaly three objections to our proceeding Win 'nS
FIRST The plaintiff has capacity to sne th1t M Is TO
say as resident and payer OF TINS city nc nhs 10
standing in Court Second: II he has a standing III
Court It IL not sufficiently alleged or proved or rather
that the condition precedent OF right to bring an aC
tionto w.t. tho refusal Of the Trustees m ~ 4
be- IL is dsproved by their afdavts. Third Ihey say
that apart from these two questlons our sSoc
sufficient to bring this defendant Into Court ana
Now has this plaintiff any capacity to suef submit
that r question cannot be raised and that your Honor
viii not entertain it at this stage OF the which is
mere preliminary stage The Code PROVIDES that We,o
the objection to the capacity yt 20 sue %v
that where does not it shall be raised by answer anu
submit that only be tn raised under Iee safe
saving that your Honor will not at this stage
fsn icctIy pain that we have no standing in Court;
II there il any doubt, submit that your Honor ngn.
decide the question now Now my Learned onr o the
ground Of complaint is not sufficiently alleged oI ~, ~
Il is disproved by their aiiavs Thrd they & ray S s; 1n
aDart from tho3c two questions, our papers are lot
cient to bring this defendant INTO Court ana suoec' MN
to this examination.
THE PLAINTIFFS CAPACITY TO SUE.
Now, has this plaintiff any capacity to sueH submit
th fbn fion bp Spd.
will not entertain 1t this stage of the case. which Is
mere prclimninary stage. Tho code provides that
where the objection to the plaintiffs capacity TO rue ap
pears the face Of the complaint 1t shall be raised by
demurrer; that where It does not u snail De riscu y
answer and submit hat it can only he raised under
tho code in one OF these two We think we are az
least safe in saying mat your onof w nartrctv pan
nat have standing in Court ithcre Is any uouDl'
submit that your Honor might decide the ow
Now, my learned friend assumed tiat the only S3una
OF standing Court the ground OF the complaint
ry Tv entirely upon thnt our frs proposition is that
under the general principles OF common aw or 4i .t
Courts Of EQUITY we have rgnt@ I'm ndrr T ,he
circumstances suggested In the affdavit on when we
move. II the money OF corporation Is stolen OF raa
enty taken the injury is to the corporate BODY ana not
TO the citizens thereof just In this If the money
Of the city has been appropriated the injury has noen
OF course admitted, but in regard to prva'n
corporations the principle prevails that r., on r,r an
to bring the suit in the Of corporation leluse to
do s0 that they themselves the guilty persons. we
shall be told that the Court of Appeals IN this state has
decided in tie case OF Roosevelt agt. Draper in % Of
NewYork that citizen aud taxpayer has no siandig
this In the first place this suit OF Roosevelt agt
Draper was brought by Roosevelt alone IN ms own @
name as individual not on behalf OF the citizens ana
taX-payers Secondly the city not made party de-
fcndant There no allegation that the sly oceIs
had refused pursue the guilty persons 10 dld not a-
pear that the same City Government or city officers who
made the fraudulent conveyance were those IN power
when the commenced and that therefore tnere
was no or omission their part that was
not case where the city had refused TO pursue the
guilty and therefore the one element OF rsn & oi sn
que trusts was wanting. Now the Court says the PAIN
ff didn't on behalf OF others the 19rp9@Taon @ rSi
sought but the plaintiff docs not represent the wIoI
public We on behalf Of every ono Interested WIN
Now, what becomes of the familiar rule of courts OF
equity that Where there is night there s remedy
in such make here W. are ou that lhe laA
payer has remedy whatever short of the remedy ny
Now, we come to the clause in the Tax Levy Of 1884
SECTION Of that IL not within the constitutional pro-
vision that no private OF 3on o pnec, and that
PRESSED in it, title Your Honor held Phillips agt the
proyisons Of the Tax Levy related Boards and
commissions created under the authority & GI sta.
county the act could not be considered local.
This relates TO the same Boards furtner, l even
in ts nature, and call your HOnOrs attention W tw9
cases in the Court OF Appeals %Gn ma nsVg %S IN 10
" Y. There it held that although the act ana us
title was the main local ga, ss S aerg c'nF OF n
iu the oyer and Tcrmner and the Court of Ap,
was not contaminated affected by the locaness OF the
other parts Of the act but was TO be considered as hos
title at a although in the general act That principle
was carried ont In The People agt. Williams a. ~ l.
Now those two eases We been Overrued and they
decide that one section embarrassed by the other
sections Of the bill provided the section you are cohsder
ing Is i'll itself general.
HOW TAx-PAYERs ARE Affected.
Now then section is general, although the party de-
clared 10 be cest qe trust must be resident here II IL
manifest to your Honor that the interests Of various per
sons residing all parts of the State may he Affected by
this section 3. EVERYBODY who pays taxes in New-iork,
wherever he may reside whether in the state out OF
it, has an interest i'll this provision, which gives another
payer who lives here the right to call these persons
to account for the misappropriaton OF trust funds
ctv owns properly in the County OF Westchester and
Putnam and il that is misappropratcd ny the snpcrvs
right 10 pursue that property outside the oity Suppose
our Police or our Board of Public Works by reason of
such misappropriatOn should come TO stand still,
danger which Is actually threatening us. is not every
citizen who to this state actually nterestedf
But vet II this act is local and section Is local your
Honor can only declare II unconstitutional provided the
contains more than one subject ana that be not ex
10 raise money for the Corporation city and
money for expenditures therefor now section IS ger
nndure Of money authorized to be raised Counsel
recited the Of Sharpe agt the Mayor decided by
general provision IN regard 10 the expenditure Of
money is bad whereas 1t would BE- good If restricted to
the moneys OF 1854 Inc answer W hat 10 tat thc uo
to this bill is perfectly general. , , -
In regard TO the examination OF TINS deiendant al
that ia required Ia section 39 II used TO be held iii the
Superior Court that order at all was necessary to
bring in defendant TO be examined under TINS section
OF course then no affidavit is necessary Now: this new
rule (2 settles those two points ~ that rule II was
provided there should be an adavit and an order
and that the examination could be had In order to fur
nsh Information for the preparation OF complaint
Now my friend says that your Honor-in the lace OF
the General Term decision. that this examination
can be had before issue-cannot De governed
pressing the sentiment of the Judges OF all the Courts all
the State and while It is very proper foI & Judge at
Term vet IL is going too say that IN no case how
erroneous that decision may have been or What
at Special Term cannot and will not, under any