The New York herald., 1878-01-12
Important Decisions by the Supreme
Court, General Term.
A VICTORY FOR THE CITY
Judge Van Hoesen on Police Surgeons
and Their Salaries.


but SIN strongly urged claim. Charles Guidet sue
she city 10 recover balance OF $751; 32 so on pawn
contracts on account OF which the city officials ha
already paid him $I3, 200 An answer was put IN o.
she part Of the city which was DENIED that ~ ma
ever been agreed 10 pay any greater sum than III
el3 200 for the repairing &C., mentioned IN Ine com
plxint The referee construed this answer as admit
ting tho contract set out in the plaintns compin'
and Judgment having been rendered oy I'M
referee In favor Of the plaintin an appea
was taken thereirom. In reversing tnis JUG
ncut and ordering now trlai Judgo law"
IN the opinion Of the Court, says the answer was Id
artificial and unawye but II should NOT unoe
section l5o Of tho Code have been construed az al
uitsng the contract set forth In the complaint. VI
the other hand 1t denial Of that contract, sno
could only properly have been construed as an ad'
mission of contrac, to pay sum for the work done
no. exceeding 200 This answer had been accepted
by the plaintiff, without any proceeding having been
taken 10 make It definite and certain, and when
the case came down TO trial It was the duty Of the
Court 70 construe its allegations literally SO That sub
staptial Justice should bc rendered 10 both parties
II was devolved upon the plaintiff to prove the con-
ract as alleged by him, ana the defendants were at
liberty 10 deny It's execution and 10 assaii its validity
10 any extent in thor power II must % conceded
thnt the work was not done under any contract
made IN conformity to section 1O4 OF chapter lo7 ol
she Laws OF ls70 but tue plaintiff coniended and the
referee held that tho Commissioner oil Fuoic WORKS
vns moi by tho restrictions contained in that
section, because The Legislature by chapter So3 OF the
Laws OF 1870 conferred upon the commissioner oil
Public Works direct and exclusive authority 10 con.
tract Tor street repairs without regard 10 inc provs
IONS OF the charter OF this act winch was embodied
IN tho annual levy OF the city, the Court says
s.I was paced the purpose OF providing Tor the
current penses OF that year. and regulating the cx
pendture OF tho sums appropriated or sach expenses
should be raised Tor repairs TO street pavemcnts
$3.50 600 and 1t declared that tho appropriations or
repairs 10 street pavements should be expended under
The direction OF tho Comm ssioner ol Pub
lie Works, but only after speclhc agreement
by him with tho parties employed. inat tnis
pruvlslon was sufficient to relieve the repairs,
&C. mentioned in section Of chapter 3S3 oi The LAWS
OF 1870 from the obligations and requirements IN re-
tpect contracts contained In the cnarter has Oeeh
held by the Court OF Appeals But IL seems 10 US OBJ
vous from the language OF tho act that thls uhre-
strained authority conferred upon tue Oohmissio1er
OF Public Works only related TO the expenditure Of
the in tDat act in respect 10 which
the Commissioner was clothed with absolute ana ex-
elusive authority. The contract under which Inc
plalntlT claims seems 10 have been made while
The mower given the Commissioner OF Public Works
oi S40 was IN iorce out after the year
1870 had expired and the tu expenditure OF the
respect 10 which sucn authority was
conferred. Tue contract was made on Or alter the
29th OF Septem ber le7 and the source oil payments
seems been the sum provided ny The Board OF
ApporIlonment under sccti0n oil cnapter 3oS oil
the Laws oi 1871, and no furthcr power seems TO
have pceu conferred upon the Commissioner oil Public
Works IN respect the expenditure of moneys appro
priacd repairing streets In the year 1871 II this
Dc so work covered by tho contract inasmucn as
II rcaulrcd the expenditure of a greater sum than
81 900, tall within the general system IN respect
oI contracts created by the charter and contract
made without observing, but IN utter disregard OF
those restrictions would not be valid" The paintin
had voluntarily submitted his claim to the Board Of
Apportionment, by which ne was awaroed inc
paid him. which sum he rcocipted for as beng IN
luii payment OF the Claim referred 70 IN The written
sertilcate Of the Board, but submitted protest
against the amount awarded TO the Comptroller The
action OF the Board the Court holds 10 DO Judicial
determ nation, and final until reconsidered by the
Board and the protest aud notice oi intention 10 COM
mencc suit wore OF no legal effect His remedy
20 The OF the Board or take steps TO CON-
pei iurther audit. Costs are directed to abidc the
event. The judgment thus reversed was for $24, 600.
REFEREEs AND FoRECLosURKz
In the suit ol Henry kanuel, trustee against The0
dore Won Ebert and others, there was involved the
question OF the right oil paintu 10 ao order OF Court
airecting refcrce statc in deeds executed by
him pursuant to foreclosure sales, whose right, title
and IN the property Affected was sold orders
we're made relieving the the obligation of
stating in his deeds whose title ana interest the
land had been sold by him, because IN tho language
eonainr IN them cd impossible for the referee
10 GIVE deeds the law required and also COM
piy with the provisions contained upon this sub
Icct IN the present Code OF Civil PROCEDURE. Judge
Douohuc Ia denying the orders asked Tor by plaintn
held that II impracticabie TO follow the statute
and the referee determine whose title he sold,
lud that II was his business SIMPLY to fol-
low the decree. From those orders appeal was
aud the decision OF Judge Donohue is reversed.
The opinion oi the Court is written by Judge
Daniels concurred in by Judge Davis. and dis
from by Juuge Brady In It II rs held that the
referees IN foreclosure sales must In their deeds COM
ply with section 244 OF the Code and state In the
granting clause the deed whose right, title or in-
tcrcst sold and conveyed, without naming In
Il not opposed 10 any previous statutes, and II IL
II rcpcals tnom that Tho object Is 10 preserve SYM
mcry OF record title without reference TO the pro-
cccdiugs IN the action, and will ordinarily DO effected
BY slaIing that the interest sold Is shat which tho
morlgagor had al the time when tho mortgage was
recorded Judge Brady, IN dissenting from this doc
Sssp. hold lhul IN he
md not be required TO Determine whose interest is
soid, and that II any change Is made II should begin
John T. Reilly, member of tho Seventy first regi-
ment, was expelled thcroirom by vote of his CON-
pany, ana was thereafter imprisoned Tor non-pay-
ment oi military nne imposed on him by The regi-
mental court martial before which he was notified 10
appear alter hts expulsion. On application by his
counsel writ Of nabeas corpus was issued by
Judge Dononue, before whom tue proceedings came
mp, and who thcreupon ordered the reiator's ois-
charge. The regiment, believing tho order o
Judge Donohue TO be irregular, appcu Tor writ o
certorar, winch was granted, upon which tho entire
proceedings came up for argument at General Term
Il there conlcnded by Mr. Isaac l.. sink, OF coun
sci for Reilly, that having been expelled ana thereby
disgraced, and having submitted To the action oi hi
company and acquiesced in II without making an,
effort 10 undo H. he thcroupon ceased 10 os
. member, and that therefore tho regimen
sal court martial had no jurisdiction over Inn
In now Affirming tho Juage's order discharging tb
Ycator the Court says tJudge Brady delivering tn
"Ihcre is nothing to justify the conclusion ,ha
pcllcd, and therefore not liable to call or duty
respect de notified that he mad been expelle
by vote Of his company, which was true, and relic
upon that proceeding as.controiing Although no VA
not legally cxpelieu, therefore subject TO orders
yet under tho circumstances we cannot say he Wa
improperly discharged from durcss." Tho Cour
iurther says that ''the com pany should have con
tipued tho proceeding Initiated and perfected II II
soc form II authorized by the military code, oi whic
there cnn be doubt 1hc reiator seems 10 have ~
sumed that what was done was justly lone, bccaus
he n,ado effort TO either investigate the proccedin
or undo H. he acquiesced In 1t as proper exercise
power"
Henry A. Bern, an owner OF property in tho vicir
Ivy o Pearl aud Jacob streets appealed from an ofde
whereby hty.iwo eet SIX inches oil his property wa
10 be taken in the interests OF the New York an
Brooklyn Bridee Company. lie claimed that I'll
properly which was Insisted on being taken was NOR
than was necessary or authorized The General Teri
has reduced The area OF property 10 be taxon 10 thirty
Ave ieet.
POLICE SURGEONS SALARIES.
In September, 1873, Patrick W. Mcdonnell was al
pointed police surgeon, and assigned 10 duty at
saIary OF $1,000 per annum His salary sui
vcqusntly increased 10 1850. at which rate Lac W.
paid IRON March, 1875 Ho now claims that unde