New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-03-17
MR. MITCHELL MADE Il MISTAKE
HIS APPLICATION THROWN OUT OF COURT.
THE BUILDING OF TIE NEW CUSTOM HOUSE


DELAYED-JUDGE wALLACE'S DECISION.
Judge Wallace in the United states Circuit Court
Yesterday handed down decision declaring that
I,i,d states District Attorney Edward Mitchell had
made a mi take I'm his application for the condemnation
II uroperv for the site Of the new custom mousse IN
rvlino Green lie held that Mr.. Mitchell had brought
his proceedings under the wrOag law, and threw the
application out of court. bag and baggage Ny
vchou had selected the easiest way TO reach his end.
but mas lost time by II. MI Mitchell was III "dshis'
ION Yesterday and his assistant, Maxwell EVafts, VINO
had aided him on the case, could not say what step
,roud me taken Mr.. Mitchell will have 10 duoPt inc
mode of procedure laid down in another statute.
The decision OF Judge Wallace means considerable
delay I'm The acquiring Of the property "i' 'C"'ii
will have TO serve notice Oh edch pFopcf'! Houe''
all If whom Will have the right TO file separate answers
Then referee may have 10 be appointed 10 anc cNi'
deucc about tue need of having custom mouse III
uovlnr Green AID thea commissioners must appIaisc
fine value OF the property. An appeal may be taken
from their nudius and thus the litigation may iast
lOI "a year or two
Following i, Inc substance Of Judge Wallaces
opinion
f., li, lla c-tatc in New lOrh Guy for the nted
state Tor the size of new custom hOuse under inc
-cDcuncG IL, l-c.. owner, Of the ItdI c>'a'c nave
%vP.'vv t tr, ne -er,. ;,Fy VI Inc Treasury not
authorized to acquire title 0y condemnation unIcSs III
me eyct OF the selection OF single site for both an
|,,r,i's v,.up'i-c AID a custom house that he Is
moi authorized Ia proceed until alter ahVtrllslhe lDr
proposals. cc,-on Oh Juiidi, tOh over inc prop
crty by Tie state Oh NcN lOth i conGliOh precedent
10 his r-nt To- proceed ana That the present proceeding
not CONFORM a. by law II must to the pOoeeuls'
~ like III thc courts Of record III ms Stde
None OF these objections, except Inc last, scchs " ENe
suflccu merit 10 require discussion The last IS
solloGs one, and III my judgment Is insupcrdbc.
to acquire lands far public use are by Act oil Cose'.
OF August !, 1855. 10 DC cicl a. 10 mt.eI' 81
ft. 4.
conformity near may be To the pfacucc, plead
ing, forms aud proceedings existing at the umc ia
which suCh Federal court Is held. The Lr-lsm.urc oi
the STATE III loyU revised the laws for the cohd maalion
Of lcL property for public u,c, dAd cm1Ouc' tAclr
Icvi,lo:l under the the OF the Condemnation law
IN the Code of civil Procedure. sections 3,3j.-3,J7i
These code provisions regulate the practice pcadme'
form and mode OF proceeding IN me court, ol lls Sid'e
In all CtG,c, for the condemnation OF real property
for puohc use section 3,3oj rcpeals all prccNl~tin;
acts and parts OF act, saving, however ana cAempuHI
from the repeal all proceedings In behalf OF the city OF
Nc>.-lOrk and any Of il boards or departments.
an i','.u'h tI.' P'cI. % .'c Ia C w.
OF the Government nave adopted the proceeding I'M
specially saved 10 the lOad OF Education OF New
Ok CITY 10y The law OF lo77. Inc present pi0ytcc
mS therefore conforms 10 the practice ia the state
'o+rt III M "Hol'uoHs 'dNe, OF Il Gas ~ a'Dcp''d
dlly state Courts. II be conceded THAI
cause 10 cc present but 50 are all the Pi"ceeds- OF
suit, 10 which Tie code provisions appy Tie cause oil
action III all is the assertion Of a H-ht To 'uHdcmi
discretionary power. the Federal courts, In condcnna
ton suits dud common lawsuits, arc 70 conform uI
adopting me P'd'ucc ana pi"cd"Ic "rIoh uc STATE
court, would follow u similar -Ut. lh!s thcF can
not do With aiy certainty uulc,s the rule of conformity
j, found ia the practice ana PROCEDURE IN 5lIl4iI
GENERALLY, and IJt tiut which MAY obtain a5uoiN
IN similar case, exceptionally Ihc4c are HpoIu'"'
and radical difference between >uch proceeding q,
the Ludrd Of education j, Authorized 4" adopt ana
the Sut for condemnation which the code p.'''F!oe'
for sUitoTs -c..rilf. Thee are found ln UIc pro
visions for giving personal notice q, 10 tho proceedings
20 property owner for protecting the n-his Of AZ
sent or uuhuoan owner, AID for securing the pay
ff 4 of he N