The sun. [volume] (New York [N.Y.]) 1833-1916, 1900-10-03
COLER BEAT AQUEDUCTM MEN
COURT or APPEALS WITH HIN
AGAINST sCOTT AND HHALEN.

Suit May Now He Brought 70 Recover the
$500 ZOO Paid Under Confession Of JudE-
ment to O'Brien a C~lsrk-Coler Had 20 Pay
IL or 90 20 Jail for C~ontempt-Am che
Courts Below Reversed by This Decision.
The Court OF Appeals has reversed the lower
courts in the action brought a year ago 10 set
aside judgments for $4,000 obtained In De-
cember. 1897. by OBrien a Clark. the aaue-
duct contractors. against the city upon con-
fession Of judgment by Francis 81. Scott, then
Corporation Counsel. Comptroller Coler re-
sisted the payment Of the money, c~ontendins.
an he has c~ontended In his controversy with
Corporation Counsel Whalen. shat the Cor
poration Counsel had not the power to confess
Judgments against the city without tho APP
prevail Of the Comptroller. The Court OF APP
peal's decision. word Of which was received
at the Comptroller's Office yesterday. sup
ports this contention. which. II will be remem-
bercd. was the cause Of considerable feeling
between Mr.. Coler and Mr.. Whalen and which
resulted in the enactment last winter f~orbldding
the Corporation Counsel TO confess Judgments
without the written assent OF the Comptroller,
or. In case the amount Is over $4,000. OF the
Mayor also. How far the final declaration Of
the law as II was in December. 1897. affects
Judgments for wages and other claims oon-
fessed since then remains 10 be seen. Tho
decision is the more noteworthy because OF
the fact that all the decisions Of the lower courts
have been against the Comptroller.
The Comptroller got the adjudication through
a taxpay er's suit. Irving r. Bush. brought the
action last October and employed Kellogg 4
Beckwith OF 80 Broadway as counsel. The
claims presented by the aqueduct contractors
for extra" work involved something Ike
100000. the two contracting firms, O'Brien
i&Hs Ct tbat tR HPd v BFo GIs 10 bG ,Ss5T for q S work oS dons 10
declared was not provided for in the contract.
r ths Elt .cl GSt}lasd the 10 PAY .,rsoa asa ID Of i'' ih 9S SISims.
TO represent them. The city was defended
Root. Austen q. Fox aud James Carter. The
courts decided in favor OF the city The con-
tractors then prepared 70 bring suite on other
out of office and taking his seat on the SUI
prflns 0 Go IT, bench oSgic soTPq ira a6S EsSnsel s sSSTtd
Judgment Tor $4,000 az an EQUITABLE settle
mept Of the claims Mt Scott at the time
II proceedings were continued.
Comptroller Fitch did not approve the action
Of the Corporation Counsel and when, IN the
spring Of 1895, the matter came before Comp
ment on the ground that NJ scotthsd n9 power
70 Flte WltnOut MT, FUCHS Corbeut. lno
courts took the opposite view.
At the beginning OF the litigation In October.
1920. Mr.. Kellogg. for Mr.. Bush. made an APP
p~lication In Brooklyn for an order enjoinins
the contractors from collecting the Judgments.
The defendants succeeded In having the case
removed TO New York county after the matter
had been appealed 70 the Appellate Division;
The motion Tor the Injunction was afterward
heard before Judge Bo~okstaver and was denied
by him. "A appeal wa immediately taken
10 the Appellate Division and a further motion
was made by Mr.. Kellogg for an order enJoining
the collection Of the judgments until the appeal
could be heard This application was, how
ever. denied by Justice Tnlax and thereafter
the Comptroller was. under threat Of punish
ment for contempt OF court, compelled TO pay
over the Ssp1,OCn to the Judgment creditors.
The appeal to the Appellate Division was then
brought on for hearing and resulted In a iudg-
ment flrminG the decision OF the court below,
Justices Mclaughlin and Patterson dissenting.
Tho appeal to the Court ~ Appeals was argued
by Mr. Kellogg In the latter part Of MAY Of his
year His opponent was Mr. L Latin Kellogg
Of the firm OF kellogg. Rose 4 Smith. attorneys
for the Judgment creditors. 1t Ia upon this
appeal that this decision Just handed down
was rendered
The effect OF the decision. Mr.. Kellogg says.
Is 10 permit the taxpayer now TO prosecute
the action for the purpose OF recovering the
money which the Comptroller was compelled
20 pay TO the Judgment creditors.