The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-02-02

airy following authorizing an application TO be
made to the Court to set aside all the proceedings,
including this award, which was subsequently
done, and new Commissioners were appointed. Mr..
Garrison, who is citizen or New Jersey, then
brought suit against the city, claiming that the
proceedings In which the award was made to him
were final and conclusive upon the Corporation.
and vested in the city In fee the Title 10 the
premises taken and the right to the q Inc
the order OF confirmation of the report OF the Com,
missioners was illegal, and the awards unfair ana
lature, and new awards made by the Commls-
sioners subsequently appointed ,a
70 All this the plaintiff entered demurrer. ana
yesterday the case came before the Court on argu-
Mr.. George T. Curtis and Mr.. John @. Shaw claimed
~, 1871 was void, because it impaired the oblga-
ton OF contracts within the meaning OF the consti-
tuition Of the United States the title to the prem
ises having previously become vested in the city,
ana me right to bring an action for the award
vested IN the PLAINTIFF; also that 1t was unconstitu-
tOna In tnat 1t Invested vested right contrary to
the law OF the land, and took away property with
out que process OF law against the constitution OF
Mr.. Curtis, in a heightened and elaborate argu-
ment, went on to say that the singular action OF
tempting to get rid OF just contract could not be
maintained in any court In which federal law
was maintained. The act OF February 1871,
the Special to the General Term of the Supreme
Court. That showed that the right OF appeal did
not exist before, and 1t was also violation OF the
public policy laid down in the constitution. The
Special Term was the Court to which the act OF
for for continuation. lie contended, on the whole
the Special to the General Term, The
act OF 1869 strongly initiated against the idea OF
there being an appeal from the Special to the
General Term. The report says the act shall come
the commissioners shall have discharged all their
duties and functions that they SHALL to the utmost
Of their ability, make correct report, and then,
before confirmation, according to the act OF 1918
and the construction given to 1t by the Court OF
Appeals, the Court shall commit the same report
to the same commissioners for revision. Whether
the right OF appeal existed not, it was not the
mode resorted to in the present case The pro-
II hs pe the was
ana the vested right that belonged to 1t was an
nulled. The Court Of Appeals in the proceeding
Peister. in the opinion OF Judge Peckham. affirmed
the general inherent power Of the Special Term OF
aside the original order OF the confirmation. They
said expressly that they lid not put 1t on the
ground that they were authorized to do 1t by
statute, but upon the ground that they were
authorized to do 1t by the general powers OF the
Court, by overlooking the act OF the record before
them, that the order Of confirmation was annulled
and set aside, not by the exercise OF the inherent
power Of the Court, not by the exercise OF the
power confirmed by the statute, but by the special
State must be exercised in accordance
with the provisions OF the constitution,
prop p taken Il rom him ' In all our systems
OF legislation which provided for the taking OF pr
vate property for public use 1t was usual to make
an ascertalnment OF the damages in the same pro-
ceeding by which citizen Is to be Invested OF his
property when 1t Is TO be vested In public or pri-
for the exercise Of that constitutional right in this
city the Legislature, by the act Of 1913 had
TO ne ns
In the State and the right chat the damages found
shall vest in the citizen go tnstante. What the
plaintiff held was asubstitute for his land, an award
for damages made under constitution provision
and placed IN lieu ofhis land That award, therefore.
e se
great right Of eminent domain, based on his right,
secured Dy the constitution, to have substitute
which he Is Invested. He could not be deprived of
that property or award save according to the law
tisj commended, without lear Of contradiction, that
1t was not according to the law OF the land or &C.
cording to due process Of law to provide that a
mans property should be taken away from him by
notice to his attorney and by publication. !, Of
Charter nas his s h M %a the
wen be contended that Il the Legislature were to
ordering every record there to be burned up that
deprived persons OF their titles and threw them
stroy the muniments Of property. they could
not destroy nor ad Of they take
some proceeding at common law which deprived
him oft by trial! or else by some provision Tor a
review, or revision, or retral Of his right, what
notices to him personally, he having right to
some remedy which was not given In this case.
MI. A. J. Vanderpoel replied to the argument Of
Mr.. Curtiss He cOntended that the Courts had
held that no vested right could be held in fraud
wrong. This Broadway widening was q fraudu-
lent proceeding, carried on in utter violation Of
the rules Of law. The award was made after notice
had been published and after the papers had been
to all parties to call and examine them within a
certain number of days after that time. The awards
were increased in favor OF some parties. That was
done to large amount when the city authorities
were ignorant OF any proceeding OF that kind. MIR.
Vanderpoe claimed that the acts of the first Com
even II the order OF confirmation was final and
CONCLUSIVE the act OF February, 1871 had only pro-
vided new remedy against a wrong, which might
be done even in the case of judgments without i'm
pairing the obligation OF the contract.