The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-05-06
CITY'S TO BUY PEACE
APPELLATE DIVISION CLOSELY d.
VIDED OVER 1T.

Three Judges Hold That Corporation Coun-
sci Scott Had Power to Head OF Further
Litigation by Contractors When Their
Suits Had Failed-Two Say He hadn't.
The Appellate Division OF the Supreme Court
was divided three to two yesterday in sustain
ing the lower court in refusing to set aside the
judgment OF 800. 600 against the city entered
on confession of former Corporation Counsel
Scott in favor OF John O'Brien and other aque-
duct contractors.
An action regarding the sixth section OF the
aqueduct was lost all the way up to the Court
OF Appeals by the contractors. and several
other cases Of the same sort we're thereafter
held in allegiance. After the decision Of tho
Court OF Appeals the contractors applied to
the Legislature to get awards for them. but
failed. Application was then made to Cor
~poration Counsel Scott to let them have judg-
ment by confession. and after he had taken the
opinion OF the Mayor. special counsel in the
case. and others. he permitted the judgments
for $780, 900 to he entered against the city, His
successor, Corporation Counsel Whalen. with
the cooperation of COMPTROLLER Coler. afterward
movedto set aside the judgments on the ground
mainly that the Corpo ration Counsel had not
the right to confess judgment against the city,
but the motion was denied by Justice Pryor.
The Corporation Counsel was in an equivocal
position. because he had himself confessed
Judgments against the city in claims made by
the Westchester Waterworks.
The opinion Of the majority OF the Judges Of
the Appellate Division is written by Justice
O'Brien. with Justices Van Brunt and Ingra-
ham concurrinG. A dissenting opinion lie
handed down by Justice Mclaughlin. with
Justice Patterson concurring. A popularity
OF the dissenting opinion Is that Justice
Ingraham's father is quoted against the
position OF the present Justice Ingra-
ham. and letters Of former Corporation
Counsel Scott. now Judge. are quoted
against himself in his confession ri. Judgment.
CORPORATION Counsel did have the authority to
confess Judgment Justice O'Brien says. re-
garding the claim, that it would be a danger
Gus power to imply in the Corporation Coun-
Although such authority may be abused
the city is lust as likely to be injured by a neg
lect to eonlide 70 some responsible officer
something IS ioft to, the judgment and discre;;
ton of officials. and the responsibility placed
upon them to determine under what circum-
idle to confer it.
The opinion concludes: AS the corporate
authorities had reached a conclusion lin which
we cannot say they erred, that a very consid-
cradle liability might be fNed against the city
court below was right in refusing to set aside
the judgments.
The opinion OF Justice Mclaughlin says that
the Corporation Counsel had no power to con-
Tess Judgment. All his powers at that time
were derived from the Consolidation act. which
contains no such authority. expressed or by i'm
pIication. He says further that he has been
unable to find any precedent for his action.
The Judge continues:
1t is no concern to this court whether the
act OF the CORPORATION Counsel was to the best
interests. of the city or not" He says further
that the Judgments should not stand. because
there was no consideration for them. There
were no claims on the part OF the contractors
that could be enforced in the actions brought.
because they were substantially the same ac-
tions chat the Court OF Appeals had passed
upon. The only consideration was threatened
litigation. which will not do as a consideration
for the Judgment"
A letter written to the Aqueduct Commits
sioners by Mr.. Scott is quoted by Justice Nc
Iaughlin. which reads: AS | have squarely
said to the members of your board. so far as
strict legal liability exists Il has been
authoritativcly settled by the Court of
Appeals that there is none such on the
part OF the city. The only justification for set
Ting at all. therefore, would be that upon the
wise for any other %litigant. 10. purchase peace
siderable in itself. is very much smaller than
the aggregate OF the claims which have been
asserted"
The Judge says the Corporation Counsel can.
not buy the .city'S peace from litigation. and
concludes: Il cannot conceive OF a more dan
gerous precedent to the city than this one if
the order is affirmed. a. il practically puts tho
disposition OF the property Of the city in the
hands Of the Corporation Counsel"