Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 157

Author: Stiles, Henry Reed, 1832-1909.
Publication date: 1884
Publisher: New York : Munsell
Number of Pages: 1360

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Among the witnesses called for the defense, was a prominent clergyman, who testified that the prisoner had called at his house and introduced himself as a publie lecturer, stating that he desired to deliver a lecture in Brooklyn, and that he could lecture upon any subject, no matter what. "Now, for instance," he said, "there is a sofa; I can lecture on that; it's a glorious thing to talk about, full of mighty suggestions. Now, I'll give you a portion of a lecture on it," and then the man commenced a regular lecture on "The Sofa," and continued to talk for some time. "Such was his manner," continued the elergyman, "that I thought, and still think, the man is insane."

The case was ably summed up by the opposing lawyers, after which Judge Strong proceeded to charge the jury. His charge was manifestly against the prisoner's plea.

" It is contended, gentlemen of the jury," he said, "by the prisoner's counsel, that his insanity is apparent from his having lectured on a sofa. Now, gentlemen, this is a question of fact for you to decide, whether his having lectured on a sofa is any evidence of insanity. The court does not hesitate to say that, if this fact is any evidence, it is certainly very weak and un- satisfactory. You will remember, gentlemen, that Cowper, one of the greatest of England's poets, wrote a beautiful poem dedicated to a sofa."

At this point the St. Louis lawyer arose and, with some excite- ment in his manner, exclaimed: "Your Honor will please re- member that very soon after writing that poem, the great poet in a fit of insanity made an effort to take his own life, which came ncar being successful. If he in a fit of insanity wrote a poem on a sofa, why may we not say our client was insane when he talked insanely about a sofa ?"

This sudden turn to his suggestion regarding Cowper placed the judge in a position quite unexpected, turning the case of Cowper and the sofa quite against him. He made, however, au ineffeetnal etfort to escape from the dilemma. This sad inci- dent in the life of Cowper produced such an effect upon the jury that they returned a verdict of " Not guilty."

ASA P. AND F. W. ROBINSON vs. TIIE CITY OF BROOKLYN.

Tins was a very important and hotly contested suit. The litigation grew ont of the Bond street sewer and its laterals in 1860 G1. This action was begun in 1863, to recover $50,000 against the city for alleged breach of contract. Some idea of its importance may be gained from the fact that those two distia- guished lawyers, Henry C. Murphy and Hon. John G. Schu- maker, were the opposing counsel ; the former appeared for the plaintiff, and the latter for the city.

The cause was referred to John B. Haskins, Esq., who ia October, 1866, made a report in favor of the plaintiffs and against the city for the sum of $373.11 on items of damage which had been conceded by the city. Judgment was entered on this report against the city for the above sum and $250.68 costs,

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BENCH AND BAR OF BROOKLYN.

amounting in all to $623.79. This, of course, was a signal defeat for the plaintiff's, and they took an appeal from the judg- ment to the General Term of the Supreme Court. The case was argued before that tribunal in January, 1876, and in the following March judgment was given granting a new trial because of one erroneous finding on the part of the Referee. After this the eause was left to itself for several years. At length, in 1881, dur- ing the administration of Mr. De Witt as Corporation Counsel, the cause was brought to trial before the same Referee, who, after several hearings and considerable delay, made a report more favorable to the plaintiffs than before, "but still of such small amount when compared to their elaim as to be a substan- tial success to the city." The precise amount found for the plaintiffs was $2,517.39, of which $278.46 was admitted by the city, and which, therefore, the plaintiffs had been at all times entitled to payment. The balance of the judgment re- covered by the plaintiffs consisted of about 20 years' interest on several of the items found due, amounting to over $1,100, and of $1,330.92, the eosts of this long, important and expensive litiga- tion.

All the serious questions of law involved in the action are found in favor of the city. The heavy items of plaintiffs' elaim were all shut off by the Referce. The manner in which Mr. Has- kins condueted the case as Referee was generally commended, his mind secmed so well adapted to the disentangling of the complex questions of law and fact in the case. The lease was finally settled, under the directions of the Common Council, for the sum of $5,020,02. 100.

The following are important cases, in which the city of Brooklyn has been interested, but to which we ean only briefly allude :

Brooklyn Bank v. De Grand, 23 Wend., 342; Brooklyn Bank v. Waring, 2 Sandford, Chancery Rep. 1; 47 N. Y., 139 ; Brooklyn Park Commissioners v. Armstrong, 45 N. Y., 234 ; Brooklyn v. Hamill, 43 N. Y., 554 ; Brooklyn City, etc., R. R. Co. v. Coney Island R. R. Co., 35 Barbour, 364 ; Brooklyn Central and Jamaica R. R. Co. v. Brooklyn City R. R. Co., 33 Barbour, 420 ; The Dal- zelle Divorce Case ; Gray v. Brooklyn ; Meade v. Brooklyn ; The New York Saw Mill and Lumber Company v. Brooklyn ; The City of Brooklyn v. Richard Wood, et. al. ; John J. Hardy v. The City of Brooklyn; Henry W. Sage et. al. v. The City of Brooklyn ; The City of Brooklyn v. The Mayor and Aldermen of the City of New York ; The People ex rel. Jesse Johnson v. John Mitehell, Treasurer of the City of Brooklyn, and M. O'Keeffe, Registrar of Arrears of the City of Brooklyn ; The People of the State of New York ex rel. E. Darwin Litchford v. Michael O'Keeffe, Registrar of Arrears, etc.

These are only a part of the important cases which might be mentioned that have occupied the attention of the city courts.

As has well been said, any one desiring to cateh an idea and the drift of these courts may profitably study these cases. The result of the litigation in which the city had been a party litigant for the ten years ending December 31, 1879, is seen in the report of the Corporation Counsel for those years-Mr. De Witt-in which it appears that upon all judgments finally recov- ered against and in behalf of the city, over this extended period, there was a balance of over $63,161.53 in the city's favor, and upon the cash paid out and received according to the books of the Comptroller upon all judgments which had been had dur- ing that time, there was a like favorable balance of $28,319.70. An equally favorable result of the litigation for and against the city appears by the reports of Hon. John A. Taylor, Corporation Counsel, for the year ending December 31, 1883. When we take into consideration the vast amount of litigation in which the city has been engaged, we may well adopt the language of a distinguished city official: " It is an obvious truth that no other city has enjoyed in its litigation a good fortune at all comparable with that of Brooklyn."

THE EXECUTORS OF PETER W. RADCLIFF US. THE MAYOR AND COMMON COUNCIL OF BROOKLYN.

THIS case is one which gives a dramatic interest to the scenes and decisions of the eourt-room.

On February 6, 1827, LEFFERT LEFFERTS, who had presided on the Bench of the Court of Common Pleas with much acceptability to the publie for several years, retired from the Bench, and PETER W. RADCLIFF, a lawyer eminent for his learning and ability, was appointed, by Gov. De Witt Clinton and the Council of Appoint- ment, the sueecssor of Judge Lefferts. He discharged his judicial duties ably and successfully, and the causes adjudicated in the Common Pleas of Kings County were important, and usually disposed of with as much satisfaction to all parties as in any other tribunal in the State. Judge Radcliff was a man of inflexibility of purpose, spirited, and, perhaps, one who might be called a proud man. Among the charming houses which, in an early day , embellished Columbia Heights, in Brooklyn, was that of Judge Radeliff; his house, though not as expensive as many of the now almost palatial residences of that street, was tasteful, indicating that its owner was a gentleman of refinement and eulture. The mansion was surrounded by beautiful grounds which to the westward sloped toward the East River, and over- looked the Bay of New York. It was surrounded by tastefully arranged shrubbery, shade and fruit trees, and withal a most inviting flower and vegetable garden. This was his home down to and some years after 1838. Early in March of that year, the Common Couneil of the City of Brooklyn laid out the present, Furman street, on the west of Judge Radcliff's grounds, below and abutting them. To prepare space for the street it became necessary to dig away a large part of the west bank of the lands belonging to the judge. In doing this a large, and the most at- tractive part of his premises, was undermined and utterly de- vastated. The judge, at the commencement of the digging, saw what the result would be, and forbade them from proceeding, and finally resorted to an action to restrain the eity authorities from proceeding; but the court ruled against him, and he resorted to an action for trespass, in which he was equally unfortunate. In the meantime his beautiful grounds were crumbling away, fall- ing into the excavations below. As we have said, he was a man of iron will, of indomitable energy, and he continued to fight the corporation until the day of his death, and enjoined upon his surviving friends the duty of continuing the fight after his death. Accordingly, in 1847, the action, the title of which we have given, was commenced by his executors against the Mayor and Common Couneil to recover of the eity the damages that their testator had sustained by the destruction of a valuable part of his grounds.

The late Henry C. Murphy appeared for the city, and A. H. Dana for the plaintiff. Mr. Murphy, in his answer to the plain- tiff's declaration, alleged that before the commission of the wrongs complained of, Furman street, in the eity of Brooklyn, had been lawfully laid out and opened, the east line of which and along and adjacent to the premises of Judge Radeliff; that as a muncipal corporation the defendants, by virtue of the power conferred on them by law, took regular and legal proceedings for the grading and leveling of said Furman street: that Judge Radcliff neglected to uphold his premises, which lay above the grade, by proper props or retaining walls, &c., and a portion of his premises slid down the bank and was destroyed.

The case came on to be tried at a Circuit Court held in Brook- lyn in December, 1839, and was decided against the executors. An appeal was taken to the General Term, and they were again beaten; following the directions of Judge Radcliff, given in his lifetime, the case was taken to the Court of Appeals, where, in Deeember, 1850, it was elaborately argued by the distinguished counsel for the respective parties, and the executors of Judge

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HISTORY OF KINGS COUNTY.

Radeliff were again defeated. That illustrious judge and jurist, Greene C. Bronson, then Chief Justice of the Court of Appeals, delivered the opinion of the court, holding that when a municipal pal corporation nnder rightful authority contained in its charter, grades and levels a street, an aetion will not lie by an adjoining owner whose lands are not actually taken for consequential damages to his premises, there being no want of eare or skill in the execution of the work of digging, and in the absence of any provision in the eharter for the payment of damages of that kind. That a man may, for a lawful purpose, dig in his own soil so near the premises of another as to unsettle the founda- tions of a building thereon; that a man may also, without being liable to an action for damages, dig so near the premises of an- other that his soil without any superabundant weight is preeipi- tated into the pit dug.

Chancellor Walworth had, some years previous to this (4 l'aige, 169), laid down a different doetrine, but Chief Justice Bronson questions that ease and in effeet overrules it. His opinion is found in 4 N. Y., or 4th Comstoek, 195. Thus ended this singu- lar litigation, so unfortunate for Judge Radeliff and his repre- sentatives; as the court of dernier ressort had deeided against them, there was no further remedy, and they were compelled to submit.

It was a fearful blow upon Judge Radeliff; he saw his benuti- ful home invaded, its ehoieest embellishments destroyed and taken away from him by a great eity, a municipality founded on justice and the sanetity of the rights of eitizens to their property, and appealed to the laws for his rights, and when the courts repeatedly deeided against him, the intelleet of the strong man almost gave way, and the trouble which it eansed him hurried him to his grave. It was one of those eases in which the law with its stern inflexibility is on one side, and right and justice on the other.

After the misfortune to the grounds we have deseribed, and the decision of the ease, a heavy retaining wall was built between what remained of the grounds and the street, which permanently protoeted them. Enough was left for a handsome lot. It is now known as 176 Columbia Heights, and is the attractive home of Hon. Thomas G. Shearınan.

THE GREAT ROPE-WALK LITIGATION WITH THE CITY OF BROOKLYN.

THERE are few eases in which the eity of Brooklyn has been a party, the history of which is more interesting than this. It was one of several strongly litigated eases containing the same eause of action - - litigation like that of Jarndyce v. Jarndyce, whielt seemed almost interminable. The contentions and bitter enmi- ties which it engendered made the village of Brooklyn -- and afterwards the eity in its early days -a scene of strife most un- happy in its nature. But time, which wears out the deepest traces of hatred and strife, has swept away that which entered into this contest, and changed the subject of the contest so that few have nny personal recollection of its original condition.

In the year 1810, Norris L. Martin, then largely engaged in the ship-chandlery business, in the city of New York, leased of Joshua Sands and Comfort Sands, for the term of twenty-one years, a piree of land in Brooklyn, extending from the present Fulton street to near Bridge street. Subsequently Mr. Martin became the owner in fre of that and some other traefs of land adjoining, purchased from James Tillary. Soon after taking possession of the first piece of land, Mr. Martin erected upon it one of the most extensive ropo-walks in the United States, with valuable buildings, or manufactories, as a part of the said rope- walk. It is hardly possible for a person as he passes from Ful- ton to Bridge street, thronged with passengers, carringes, and embellished with elegant buildings, to conceive that it was once

used, for many years, as a rope-walk; bnt sueli was the ease. It was so ocenpied from 1811 till 1828.

On Mareh 3d of that year two petitions were presented to the Trustees of the Village of Brooklyn, pursuant to the 18th section of an Aet of the Legislature, entitled "An Aet to rednee the law incorporating the village of Brooklyn, and the several aets amendatory thereof," into one aet, and amend the same, passed April 3d, 1827, praying for the opening of Washington and Adams streets through the said rope-walk grounds, viz .: One of the petitions was for the opening ot Washington street from Concord to Fulton streets, and the other for the opening of Adams street from its then present termination, near Coneord, to Fulton street. The following are the boundaries of the lands then used by Mr. Martin as a rope- walk : "Beginning at a point on a line, being a continuation of the line of the easterly side of Washington street, where the same interseets the southern boundary of the land of John Dikeman, running thence in a southerly direetion on the said continued line of the easterly side of Washington street 88 feet; thenee westerly along the said boundary line of the said land 60 feet to a line, being a continuation of the line of the westerly side of Washington street, 88 feet 9 inches, to the land of John Dikeman; thenee easterly along said Dikeman's land 60 feet. The piece of land purehased by Mr. Martin of Mr. Tillary ex- tended from the southern boundary line just deseribed, and running thence southerly on the said continued line on the east- erly side of Washington street 198 feet to the southerly line of Tillary street; thenee northerly along the line of said Tillary street 60 feet and 3 inches to the westerly line of Washington street; thenee northerly along the line, being a continuation of the line of the westerly side of Washington street, 201 feet 8 inches to the lands of Norris L. Martin; thenee easterly along said Martin's land 60 feet to the place of beginning."

It appears that Mr. Martin owned another piece of ground in this now populous part of the eity, which is deseribed as follows: " Beginning at a point on a line, being the continuation of the line of the easterly side of Adams street, 84 feet 5 inelies, to the southern boundary line of said Martin's land; thienee westerly along the said boundary line 60 feet to a line, being a continua- tion of the line of the westerly side of Adams street; theneo northerly along last mentioned line 85 feet 1 ineh to the land of John Dikeman; thenee easterly along said Dikeman's land 60 feet to the place of beginning."

We have given the partieular boundaries of these particular pieces of land as an item of interesting history, not only of the origin of certain now populous streets in the city, but the origi- nal title thereto, and the sourees from whenee the eity derived its title to the property of sneh immense value, and showing the property really in dispute in the great ease we deseribe.

As we have said, in Mareh, 1828, two petitions were presented to the Trustees of the Village of Brooklyn, one for the opening of Washington street from Coneord to Fulton street, and the other for the opening of Adams street from where it then terminated, near Coneord street, to Fulton street. Washington and Adams streets were to be opened through tho said rope-walk. On the 31st of March following, these petitions were dnly granted by the Trustees of the Village of Brooklyn, and in May following the Court of Common Pleas of King County, under the statute in such cases, appointed three commissioners to assess the damages aeeruing to the owners of said lands from the opening of snid streets. These commissioners were James W. Burtis, John D. Conklin, and Nathan Young, three highly respectable and well-remembered eitizens of Brooklyn.

On the 9th of June following, the said commissioners having examined the said lands and estimated the damages which would result from the opening of the said streets through them, reported that the damages of Mr. Martin, for the opening through the first described piece of land, amountel mider all the circumstances of the case to $7,421.24; that

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the damages due him for the opening through the second described piece of land was $2,880. The damage occasioned by the opening through the piece of land last described amounted, under the circumstances in the case, to $6,714.66. The aggregated damages of Mr. Martin, for the proposed opening or continuation of these streets through his lands, amonnted to $17,008.90. These damages were satisfactory to him, and believing that the trustees would have the report of the commissioners filed according to law, and that the said streets would be opened in due form of law pursuant to the statute, took down his rope-walks, for he now had several on the lands, and a valuable stone building erected on these lands for the safe keeping of his stoek, and proceeded to erect a new and valuable building on the line of Adams street, as eon- templated to be opened, rebuilt the said stone building in an- other place, and erected three valuable houses on other lands along the said streets contemplated to be opened. All these buildings would have been of great value as soon as these streets were opened and extended.

We now approach the most interesting, and we may say strange history of this case, and the immediate eause of its commencement. We have seen that the commissioners appointed to assess Mr. Martin's damages resulting from the opening of these streets, &c., duly discharged their duties, estimated his damages and made their report; but, strange as it may appear, all proceedings concerning the said dam- ages terminated with the making of said report, and the Board of Trustees of the Village of Brooklyn utterly refused to file said report in the clerk's office, according to law, and to proceed with the opening of the said streets, pursuant to the carnest petition of a large number of eitizens interested in their opening, notwithstanding Mr. Martin had in good faith sub- jected himself to large expenses in removing his rope-walks and buildings, and in erecting other buildings, along the line of one of the proposed streets. Such were his expenses that he was compelled to borrow a large sum of money to aid him in meet- ing his expenses until his damages were paid, and he was other- wise greatly injured by the singular course pursned by the trustees.

Thus the matter continued until about the 18th day of January, 1830, when the Board of Trustees adopted a resolu- tion to proceed forthwith to open Washington street, and Adams street, from near Concord street to Fulton street, under the petitions to which we have already alluded, provided Mr. Martin and the other persons interested in the matter would consent to waive the damages awarded them by the commis- sioners, and that a committee of six members of the board be appointed to treat and agree with the owners of the ground re- quired for the opening of the said streets. To this Mr. Martin and the others promptly assented; and yet, to the astonishment of Mr. Martin, on August 2, 1830, the said Board of Trustees, without his consent or knowledge, rescinded the resolution, and by another resolution placed the said parties who had consented to waive such damages, and to take whatever sum the said board might award them in lieu thereof, in the same situation as they were before such waiver was made. Here the matter rested until 1832. Mr. Martin began an action in the Supreme Court against the President and Trustees of the village for the damages sus- tained by him, which we have described.

In 1834, the village was incorporated as a eity, and the Mayor and Common Council thereof invested with all the powers of said Board of Trustees. By the act of incorporation no suit against the village of Brooklyn, and no cause of action against it, was affected by said incorporation, and the suit of Mr. Martin against the trustees of the village was continued against the city.

Never, perhaps, has the Shakespearean phrase " of the law's delay," or its uncertainties, been more strikingly exhibited than in the history of this action, by every kind of dilatory device.

The city by its counsel at once interposed a demurrer to Mr. Martin's declaration, assigning as one cause of demurrer that the Board of Trustees of the village, and the Mayor and Common Couneil of the city, had, under the act of April 23, 1827, a disere- tionary power to go on or not in laying out the said streets, until the final confirmation of the commissioners' report of damages; that Mr. Martin, in whose favor the report was made, could have no action against the trustecs of the village, or against the city, for neglecting to file the report of the commissioners, even though he had sustained special damages. Secondly, a municipal eor- poration is not liable for the misfeasance or nonfeasanec of its officers in respeet to duties specifically imposed by statute on them, unless the duty be imposed absolutely on the corporation. There was a joinder in demurrer by Mr. Martin's counsel, and then another long delay ensued, and it was not until January, 1841, that the demurrer was brought on for argument, before the General Term of the Supreme Court. At the July term for 1841, the court handed down a decision sustaining the demurrer, substantially on the grounds we have stated, holding that Mr. Martin's only remedy was by mandamus to eompel the Mayor and Common Council to file the report of the said commis- sioners, and to pay him the damages awarded by said report, and cause the said streets to be opened according to the said petitions.

Another singular feature in the case is, that during the time that elapsed before the said demurrer was argued, Washington and Adams streets, above and below said rope-walk grounds, were opened and converted into public streets, a part of the buildings upon the lands torn down, and other parts of them consumed by fire; a fence which was placed across Washington street upon said rope-walk by Mr. Martin, to prevent intrusions upon his lands, thrown down and destroyed; and the said streets continued through the said rope-walk ground traveled as public streets and thoroughfares for several years; the said streets were lighted with gas at the expense of the eity. And also, the said streets at the time of the argument of said demurrer were in the very centre of the population of the city, thickly built upon, and all the adjacent streets running parallel or erossing the same were filled with a dense population. Washington street, between Concord and Fulton streets, had become one of the most important and thronged streets in the city, with a large number of public and private buildings constructed on it. Was it not, therefore, right and just that Mr. Martin, and other persons interested in the lands occupied by these streets and buildings, should receive and enjoy the benefits accruing from this great advancement in the value of the said property, especially as the titles of the said lands still remained in Mr. Martin and many of the others, and especially as the city refused to pay them the damages awarded them by the said commissioners, and as it had opened the said streets, without any legal authority so to do ? The mandamus to which we have referred was, among other things, to compel them to comply with the law in regard to opening the same. The city authori- ties refused to obey the mandamus, which was alternative, and instead thereof set up in an answer various reasons for not obeying it; among which was that the damages assessed by the commissioners were unreasonably large, and if assessed would be a grievous burden on the eity, and that the expense of such improvements would greatly exceed the benefit to be derived therefrom; that the Board of Trustees had no author- ity, on the original petitions presented to them, to proceed to open the said streets; that no injury whatever had been sus- tained by Mr. Martin or any other person, and that no vested right had been conferred in and by the proceedings of the said Board of Trustees of the village. These were substantially the answers to the alternative mandamus.

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Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 157

Author: Stiles, Henry Reed, 1832-1909. Publication date: 1884 Publisher: New York : Munsell Number of Pages: 1360

Author: Stiles, Henry Reed, 1832-1909.
Publication date: 1884
Publisher: New York : Munsell
Number of Pages: 1360