New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1893-11-29
THE CITY TO SAVE MILLIONS.
CROTON AQUEDUCT CASES SETTLED By THE
COURT OF APPEALS.
JUDGMENT or THE LOWER COURTS AGAINST
o'BRIEN & cLxisK AFFIRMED-A TEST CASE

INVOLVING FROM s5. 100000 TO s. Oc0t0o.
Albany NM -s,rhe o'Bren 4 Clark Croton
Aoueduct case was decided by the Court of APP
peas to-day. 1t an appeal by the contractors
from a judgment of the General Term' FIRST De-
partment, affirming with costs a Judgment In FAVOR
of plaintiffs for $2i1190S entered upon the verdict
OF a Jury rendered by the direction OF the court at
the request of the defendant. The action was
brought TO recover S732 32 SO. with interest. for
work performed and material furnished to the de-
PENDANT under contract 10 construct section
of the new Croton Aqueduct In the city OF New
York The defendant in its answer set up counter
claim for damages for alleged bad work, and
further alleged as defence to this action that
under the provisions Of Chapter 400 OF the Laws
of 1855 neither the Aqueduct Commissioners nor
their engineers were authorized to bind the de-
PENDANT beyond the express provisions OF the con-
tract entered into between the parties to this
action and that final certificate had been made
by the chief engineer of the new Croon Aqueduct
awarding plaintiffs the sum of 49, 81, ana that
by the express terms of the contract plan'ls
could RECOVER, ND more than said sum. The pam
tifs aeEe tina the work TO recover for when TINS
cotton was brought was necessarily performed
In carrying into effect the provisions OF the con-
tract, and that the ordered by the en-
gneers in charge OF the construction Of the aque-
duct. ~
The General Term held that all liability upon
the part of the city in respect plaintiffs claim
must be founded upon said contracts; that the
Aqueduct Commissioners were not the servants OF
the city in any proper sense but an n1wer and
duties. and that the liability Of the city of New r
York for any work performed or materials lur,
oom@is s must be limited BY the act creating
said commission and the contracts entered INTO ny
such contractor and said commission
Judge Peckham writes the opinion, when Is con-
Cured in by an the Judges except JT b en Ea5
is an exhaustive one the Judge SAYING tnat IL Is
apparent from what has been said in the course Ok
Shio hat tb.a plaip
facts sufficient to constitute cause OF action
against the R for amy the ns s
There can be no pretext that the work Vas nm
der the provision Of the contract, or that it was
regarded oy them extra work or was so ceru-
ned. The Judge says that the contractors. o'Bren
& Clark should have asked for the hnai certili-
cate before performing what they claimeI was
extra an nor tnen could have been called upon
to determine whether or not the work was called
for by the contract.
In the legislative session Of 1890 John O'Brien.
senior member of the firm of contractors and a
former chairman of the Democratic State Com
mittee backed by powerful lobby, secured the
passage of a bill giving the aqueduct contractors
preference in all the courts OF the State in when
any action of special proceeding to recover their
claims might be pending. Under such an act they
could begin suit in any county of the State. Cor
poration Counsel Clark and the city authorities
fought the bill in various stages in the lesisia,
ture but the lobby, with its expectations OF untold
IT,
Governor, had a tender side for oBrien and was
disposed TO give him what he aske. ,
Mr. Clark, on behalf of the city authorities,
fled a strong protest against the bill with the
Governor May 20. 1890 Immediately after IT'S pas
sage Subsequently compromise was erected. the
Governor agreeing to let the bill die if the Corpora
ton Counsel stipulated to prefer these cases III inns
county and the appellate courts. This compelled the
contractors to try their case in this county which
the main point at issue, and on June - 1870,
the Corpora ton Counsel made the stipulation sls-
gested by the Governor. and the O'Brien bill was
allowed to expire.
The selected case was first tried in July. 1851:
before Judge Irgraham. and decided in favor OF
the city The counsel for the plaintiffs were Joseph
II. Choate, Treadwell Cleveland ex-Attorncy Gen
eral Charles +. Tabor and Colonel Robert G. Inger-
SOIL For the city appeared James c; Garter Ernu
plaintiffs carried the case to the General Term.
which affirmed the decision OF Judge lngraham.
The plaintiffs again appealed. and in May last the
was argued before the Court OF Appeals. the
argument the plaintiffs part being conducted Ivy
: ex-Attorney General Tabor and Colonel 1ngersol.
and on the part OF the defence by Messrs. Carter
and Root .
The sixteen suits against the city, OF which the
just decided Is test case, involved from
$5C0Q00o to S., 100000.