New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1899-12-15
PRICE THREE CENTS.
WHALEN Notion TOO LATE.
ASTORIA GRANT NOW IN THE GOV
ERNOR'S HANDS.
cor,RT OF APPEALS HAS DECIDED THAT
A MANDAMUs COULD NOT BE ISSUED
AGAINST THE CHIEF EXECUTIVE.
[BY TELEGRAPH TO THE TRIBUNE.l

[BY TELEGRAPH TO THE TRlBCNEI
Albany. Dec. 14.-Corporation CounseI
OF New-York served upon Governor Noose.eS
and the members Of the Land Boara to-uny
notice OF a motion. summons and complaint an.
an afidavit for an injunction order IN resaiu
to the Astoria Light, Heat and Power Company.
Mr.. Whalen. after using the necessary iesai
forms. adds;
BY the provisions OF the charter above guo,e,s1 g.,s
II is claimed by the plaintiff, ana the piaii.uu,
charges the fact to be that the detendahlS; .n;
commissioners Of the Land Office, have no esai
right or authority TO make a grant OF lahu
under water to any applicant other than 10
CITY I'm any Of the navigable rivers or st,tA st,s
adjacent TO uplands owned by such apphcah.
after the Board Of Docks Of the city shsh
have examined into such Application ana ,a ug
termined that the granting of the same "ou ",S
conflict with the rights Of the city under s1u
charter, or he in anywise injurious to the M
terests of said city
The notice then proceeds 10 rehearse the ~
tion by the Board of Docks at various uniss'
showing that IL had examined the appicati""
Of the Astoria company and formally protesteo
against granting the land TO the Lana boaiu@
Reference was made TO the hearing before tne
Board at Albany and the ultimate dttermihation
Of the Land Board 10 overrule the protest OF the
Board of Docks II is pointed out that on De-
cember the Land Board passed a formal
water to the Astoria company. In conclusions
the plaintiff states that he has no remedy at
law. and that the granting OF said application
would result I'm irreparable loss to the city of
New-York. incapable of being redressed In
money damages and that the plan Of the water-
front in the city OF New-York would be serious
ly interfered with. Therefore an Injunction waS
asked to restrain the Secretary Of State from
issuing any grant Of land to the Astoria COM
pany and the Governor from signing the same
1t is stated that the signers will move the
Court at a special term to be held in the city OF
Albany on December 20.
Secretary of State McDonough to-day. in dis
cussing the summons and complaint, said that
so far as the action and motion for the injunc-
ton affected the Commissioners Of the Land
Office the suit seemed to be late as the money
had been paid to the State and the patent had
been signed by the Deputy Secretary OF State
and sent to the Governor. The patent had
been in the hands of the Governor for several
days. so that nothing remained to he done by
the Land Board. and therefore nothing that
they may be restrained from doing. Mr. Nc
Donough added:
I am sure that the learned Corporation Coun-
sci of New York must know that no court in the
State has jurisdiction to restrain and prevent
the Governor from the performance OF his ofn-
decided by the Court Of Appeals, where IL was
sought to compel Governor Morton and the
other members Of the Board of Trustees OF Pub
lie Buildings to reinstate Broderck, under the
law giving preference to veterans, the court
held that mandamus could not be Issued as
against the Governor; that the Executive De-
partment Of the government was co-ordinate
branch, and could not be controlled by the Ju-
dietary.
In view of this decision OF the Court Of Ap.
peals | doubt very much whether the legal
question that is as TO whether the state may
grant title to lands under water within the ter
ritory Of Greater New-York. can be raised In
this case. 1t seems to me II the city or New
York desires to review the action OF the Boaro
some other method should be resorted to.
notice by the eighth allegation OF the COM
plaint Il is alleged that the Commissioners or
the Land Office had no legal right or authority
to make the grant in question. If that be true
then the grant issued pursuant to the resolu,
ton of the Commissioners must be Vold' anu
therefore vests no title in the grantee ana IL
seems to me strange that an effort should oe
made to enjoin the Board from the performance
of what is claimed to be an absolutely Void act
At the office OF the Corporation Counsel In THIS
city Yesterday it was stated that papers had
been served on the officials Of the Astoria Light,
Heat and Power Company about the time the
papers were served the members or the
State Land Board in Albany. Assistant Cor
poration Counsel Freedman contradicted re-
ported statement by Governor Roosevelt tnat
the Astoria Company had been picked out for
attack. while other concerns were not touched.
He said:
THE Astoria company's case has been picked
out because It was the first one on the calendar
that came to us, and want to make tess
case OF It, There is nothing behind the attack.
We care not what company asks for these con-
cessions we are opposed to the State Lana
Roard giving away franchises and we mean TO
contest their right to do So
cnrnrI mLLL CQNEEST IN EENTECKY. =