The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884 Volume I, Part 138

Author: Stiles, Henry Reed, 1832-1909, ed. cn; Brockett, L. P. (Linus Pierpont), 1820-1893; Proctor, L. B. (Lucien Brock), 1830-1900. 1n
Publication date: 1884
Publisher: New York : W. W. Munsell & Co.
Number of Pages: 1114

USA > New York > Kings County > Brooklyn > The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884 Volume I > Part 138

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" The following statement, furnished me by Hon. ISAAC S. CATLIN, District Attorney of Kings County, shows the number of convictions in the city court and oyer and terminer at different periods:

"City Court .- In 1849, 14; in 1850, 31; in 1851, 110; in 1852, 19; in 1853, 13; in 1854, 31; in 1855, 19; in 1863, 1; in 1866, 17; in 1867, 36; in 1868, 2; in 1870, 4; in 1871, 45; in 1872, 2; in 1875, 2; in 1879, 2; in 1882, 2.

"Oyer and Terminer .- In the year 1846, there were 25 convictions in this court; in 1849, there were 90; in 1850, 262; in 1851, there were 19; in 1852, 30; in 1853, there were 11; in 1854, 3; in 1855, 2; in 1861, 3; in 1862, 4; in 1863, 2; in 1864, 2; in 1865, 1; in 1866, 4; in 1868, 3; in 1869, 5; in 1870, 4; in 1871, 7; in 1872, 3; in 1873, 1; in 1874, 3; in 1875, 5; in 1876, 1; in 1877, 2; in 1880, 8; in 1881, 3; in 1882, 2.

"In the Court of Sessions .- The convictions in this court for felony and misdemeanor were: in 1829, 12, in 1839, 13; in 1849, 31; in 1859, 107; in 1860, 180; in 1881, 252; in 1882, 260.

"Total convictions in all the courts: In 1829, Court of Sessions, 12, being one conviction to 1,900 inhabitants; in 1839, Court of Sessions, 13, one to 3,400 inhabitants; 1849, same Court, 31; Oyer and Terminer, 90; City Court, 14; total, 135. The population of the county was then about 126,000; this would be one conviction

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MUNICIPAL HISTORY OF BROOKLYN.

to every 930 inhabitants; 1869, Court of Sessions, 180; Oyer and Terminer, 5; total 185; the population of the county at this time was about 400,000, being one con- viction to every 2,160 inhabitants; 1881, Court of Ses- sions, 252; Oyer and Terminer, 3; total, 255; the popu- lation was 620,000, indicating one conviction to every 2,430 inhabitants."

By the report of the Hon. WILLIAM C. De WITT, cor- poration Counsel, dated January 2d, 1879, showing the results of the litigations of the city for the ten years then last past, it will be seen that upon all the judg- ments finally recovered against, and in behalf of, the city over this extended period, there was a balance of $63,161.53 in favor of the city, and upon the cash paid out and received according to the books of the comp- troller, upon all judgments which have been had within the time we have referred to, there is a like favorable balance of $28,319.70. It is an obvious truth that no other city has enjoyed in its litigation a good fortune at all comparable to that of Brooklyn. On the con- trary, every city, entitled by its wealth or population to be put in contrast with Brooklyn, has upon its liti- gation, during the period mentioned, probably fallen debtor to the extent of several million dollars. One reason for this is, our charter contains a clause exempt- ing the corporation from liability for misfeasance or non-feasance of its officers in the administration of chartered powers. Such an immunity has not only not been conferred upon any other municipality, but it is elsewhere totally unknown to the laws of the world. Its constitutionality has been severely attacked, but in 1869 it was sustained in the Court of Appeals.

To the statute creating this immunity, and the deci- sions of the courts which have upheld it, we are mainly indebted for our singularly good fortune.

In the same manner, our assessments have been pro- tected by provisions of law. The total amount vacated or reduced by the courts, since the consolidation of the city in 1854, is $456,000. During a large portion of this time we have floated a debt of $10,000,000 for local improvements. This debt has been reduced by collections of assessments, and replenished by fresh issues of bonds as the progress of the city permitted or required.

Among the important cases, the decisions of which have largely benefited the city, is that of Leonard v. The City of Brooklyn, which decides that mechanics' liens cannot be placed on any of the buildings belong- ing to the city. In the case of the Brooklyn Saw Mill and Lumber Company v. Brooklyn, the great common law rule distinguishing corporate acts and liability from state acts and liability, received its clearest and most consummate interpretation, and the city was freed from a claim of $50,000.

In the railroad litigations, all the old charters which threatened the streets of the city with invasions by railroads, regardless of the will of the Common Coun-

cil, were destroyed; and the new amendments of the constitution, making the consent of the Common Coun- cil indispensable to the construction of such railway, and hence affording the city an opportunity to acquire compensation for these valuable franchises, were en- forced and expounded. The verdict of the City Court, in the case of Jackson vs. The City, the corporation escaped a fraudulent claim of $12,000 for spurious dis- infectants, during the prevalence of small pox in 1869. In the judgment of the same court against the city the corporation was relieved from a multitude of claims for damages for emptying the Third avenue sewer in the bay at Twenty-eighth strcet.

The decision of the Circuit Court of the United States, declaring the patent which Charles Guidet held over the kind of pavements laid on Fulton street to be void, the city of Brooklyn not only accomplished ines- timable good for itself, but it conferred a lasting benefit upon a majority of the cities in our country, which were most severely taxed and oppressed by it. Under the Guidet patent, pavements cost nearly six dollars a square yard. Since it was declared void, under a free competition it can be laid for half that price, at a cost nearly as cheap as the common water or cobble stones and is the best pavement for a populous city that has ever been devised.

The report of Hon. John A. Taylor, present Corpora- tion Counsel for the year 1882, refers to the decision of Guidet against the city as a wide-spreading benefit, not only to Brooklyn, but to all other cities using the same kind of granite pavement. His report shows equally favorable results in litigations for and against the city during the year 1883.

" The enforcement of the city ordinances," says the report, " imposes upon the law department much labor. It would be greatly facilitated, and the administration of these laws would be more efficient, if the various ordinances were brought together in a municipal code, which should be consistent with itself and acceptable of ready interpretation by the courts."

There were, on the register of the City Attorney, for the year 1879, 134 causes for and against the city. A large portion of them were in the City Court.

In 1881, there were one hundred and eight causes on the City Attorney's register, for and against the city. In the year 1882, there were on that officer's register one hundred and fifty-eight causes, for and against the city.

The history of the Law Department would be de- cidedly imperfect, in point of interest and profit, with- out a brief reference to the great case entitled the " People of the State of New York, on the relation of John D. Negus, against Patrick J. Kelley, et al.," in- asmuch as its decision settled not only the rights of the Law Department, but that of the legislative, thic common council and private citizens. The case is bet- ter known as " Negus vs. the Brooklyn Elevated R. R. Company."

550

HISTORY OF KINGS COUNTY.

The facts in the case are briefly these : The plaintiff, Mr. Negus, on and before the 20th day of December, 1881, was a resident of the city of Brooklyn, and was owner of consid- erable real estate in that city, much of it being on the east side of Grand avenue. The value of this latter property was, at the time of which we are writing, valued at $15.000, of which Mr. Negus had annually paid taxes and assess- ments to an amount exceeding $200, levied towards defray- ing the public expenses of governing the city. He alleged that the taxes levied and assessed by the city upon the real and personal property of its citizens, for several years, pre- vious to December 20, 1881, amounted annually to more than $6,000,000, and that the amount levied for the year 1882, amounted to the enormous sum of $6,105,450.74, and that this excessive taxation was so burdensome upon the property holders that many had left, and were leaving the city.

That the Brooklyn Elevated Railroad Company was, by an act of the legislature of the state, passed May 21, 1874, and by an act of the legislature amendatory thereof, passed May 22, 1875, created a body corporate and politic by the name of " The Brooklyn Elevated Railway Company;" that the said company was by the 3d section of the said charter empow- ered to construct and operate on the elevated railway, be- tween the proposed terminus on the east side of the suspen- sion bridge and Woodhaven, in the town of Jamaica, N. Y .; that the said railway was to be erected on certain streets and avenues, or portions thereof, named and defined by law and by its charter, which route the company accepted and adopted as the one designated by its charter, and elected to construct said road through the streets and avenues named in its charter, for which reason, among others, Mr. Negus in- sisted that the said railway could not legally change its route.

Notwithstanding this, and the other facts we have men- tioned, the said company applied to the Mayor and Common Council of the city in November, 1881, for leave to change a portion of its route, by straightening the road along Broad- way, between Lexington avenue and Marion street, without making the detour to the corner of Ralph avenue and Macon street, as then existing. This application was referred to the railway committee of the Common Council, on the 14th of November, 1881, in a secret manner, as Mr. Negus alleged, so as to preclude the owners of the land along the new route from being heard in opposition to the change. By some means, the railway company had a report which purported to have been drawn by the said committee favorable to the said change; but it was alleged that it was drawn by some one in the interests of the said railway company. Without any notice whatever to the public, this report was, on the 6th day of December, 1881, presented to the Common Council for adoption, and, on the same day, the Common Council did adopt a resolution, carefully drawn, which entirely changed the route along and through which the law directed the said railroad to be built, making an entirely new route for a part of the same.

An effort was made at the time to have the Common Coun- cil adopt, as an amendment to said resolution, that before any work upon the said road should be begun by said com- pany, it should give security, in an amount and manner ap- proved by the Mayor and Comptroller, that at least two miles of said road should be complete and in running order within two years from the day the said resolution was to take effect, and the whole road in running order within three years from said date; and that the fare should not exceed the sum of five cents for any distance travelled on the road; and that 10 per cent. of the gross receipts of the company from fares of passengers should be annually paid to the treasurer for the

benefit of the city. But the Common Council refused to adopt this amendment.

On the 7th day of December, 1881, the resolution changing the route of said road was presented to the Mayor of the city, who, on December 17, vetoed the same. It was averred by Mr. Negus, who acted for himself and a large number of other citizens, that the new route was through streets devoted to trading and commercial purposes, on which a greater amount of business was transacted than in any other part of the city, being about two miles of the most populous part of Fulton street, and thus it largely encroached upon other streets. That the construction of an elevated railroad through the route thus described would destroy the use of the streets and avenues through which it passed ; hinder and impede travel thereon, and wholly destroy the said streets for the purposes of residences. That the consent of a majority in the value of the property owners in the streets and avenues on said new route had never been obtained. It has been seen that as two-thirds of the members of the Common Council had voted for the resolution changing the said route, which the Mayor had vetoed, the resolution could be adopted, not- withstanding the veto, by a two-thirds vote. This the said company insisted would be done. To prevent a passage of the resolution over the veto of the Mayor, Mr. Negus, on the 26th day of December, 1881, procured an injunction order, restraining the Common Council from passing the said resolu- tion, notwithstanding the veto.

All the facts and circumstances upon which the plaintiff relied for the injunction were contained in a complaint duly verified, which was presented, with the injunction order, to the Hon. Henry A. Moore for his allowance on the day we have mentioned, and the injunction was thereupon duly granted.

The injunction was in the usual form, restraining the de- fendants, the city of Brooklyn, the Brooklyn Elevated Rail- way Company, John R. Lydecker and Samuel M. Shaffer, receivers of the said company, and also the Common Council of the city of Brooklyn, from voting or taking any action in respect to the changing the route of the said railway com- pany, and from taking any action upon the recent veto of the Mayor of the city in that regard. The plaintiff also demanded a judgment perpetually restraining the railway company from erecting an elevated railroad in those streets and avenues known as the new route. It was also ordered by his honor, Judge Moore, that the said railway company show cause, at a special term of the Supreme Court, to be held in Brooklyn on the 28th of December, 1881, why an injunction should not issue as prayed for in the said complaint, and why said in- junction should not be made perpetual. This order was duly served on all the defendants.

It does not appear that any cause was given why the said injunction should not be made perpetual; and now comes the most interesting part of this case.

On Saturday, December 31, 1881, an adjourned session of the Common Council was held. The president, Hon. Robert Black, occupied the chair. Twenty-one members of the com- mon council were present. After the transaction of some preliminary business, a motion was made and carried to sus- pend the regular order of business, for the purpose of taking from the table the communication from the Mayor to the Common Council vetoing the resolutions of that body, adopt- ed December 6th, 1881, changing the route of the railway; and, on motion of Alderman Duer, the said resolutions were adopted by a two-thirds vote, notwithstanding the objections of his honor the Mayor, in defiance of the injunction of Judge Moore restraining them from any such action. It is to be pre- sumed that the seventeen aldermen who thus defied the in-

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MUNICIPAL HISTORY OF BROOKLYN.

junction, and who rank among the most respectable citizens of Brooklyn, honestly believed they had just grounds for the action they took. But it was a bold and hazardous step, for which there are few, if any, precedents in legal history. It was a legislative body deliberately defying the judicial branch of the government, bringing those concurrent powers in col- lision; and, if successfully done, the judicial power would be prostrated. Prompt measures were, however, at once taken to punish those seventeen aldermen for contempt, in disobey- ing the injunction; and, after propounding and answer- ing the usual interrogatories according to the rules and prac- tice of the court and the statute in such cases, and after other proceedings having been had in the special term of the Supreme Court, an attachment was issued against each of the seventeen aldermen, charged with contempt of court in wil- fully violating an order of injunction issued by Hon. Henry A. Moore, County Judge of Kings county, on the 26th day of December, 1881, in a certain action then pending in the Supreme Court, wherein John D. Negus was plaintiff, and the city of Brooklyn, the Brooklyn Elevated Railroad Com- pany and others were defendants. Said attachments were directed to the sheriff of the county of Kings, and returnable the 11th day of January, 1882, on which day the said sheriff made return that he had attached the above-mentioned seven- teen aldermen, and that each of them had given bonds for their due appearance according to the exigencies of said attachment. They were thus virtually before the court. Whereupon each of them, severally, denied, through Mr. Winchester Britton, their counsel, that he was guilty of the misconduct alleged against him. In an ingenious and learned argument, Mr. Britton contended against the continuation of the injunction; that it ought to be vacated because it re- strained the defendants (the Board of Aldermen) in the exer- cise of the legislative powers vested in them by the city char- ter; that the injunction was void, and not binding upon the parties; that it was a mandate, not of the court, but of the County Judge, and, therefore, void.

The matter was adjourned to be heard at a special term of the Supreme Court to be held at Brooklyn on the 14th day of January, 1882. At this term, Hon. Jasper W. Gilbert, one of the justices of the Supreme Court, presided. Patrick J. Kelly, one of the defendants, having appeared personally before the said court, and having answered the proper interrogatories with a denial of his guilt, and after other proceedings were had, it was adjudged that he was guilty of the misconduct and contempt alleged against him, and was guilty of a will- ful disobedience of the injunction order granted by the County Judge of Kings county on the 26th of December, 1881; and he was thereupon sentenced to imprisonment for the period of thirty days, and to pay a fine of $250 for his mis- conduct, and stand committed to jail until the said fine should be fully paid, not exceeding thirty days. Judge Gilbert, in directing this judgment, pronounced an exhaus- tive and learned opinion, in which he said: "I think the simple reading of sections 606, 607, 609 and 610, in connection with subdivision 3 of section 3,343 of the code of civil pro- cedure, will show very clearly that the order made by Judge Moore was a mandate of the court, and not an act merely of the County Judge, done independently of the court, as coun- sel for the defendants claim. In no view of the case was the injunction void, nor can it be reviewed in a proceeding for disobedience of it. (People ex rel. Day v. Bergen, 53 N. Y., 410; People v. Sturtevant, 5 Seld, 270-273.) The adoption of the resolution was a plain and palpable violation of the in- junction. I have considered the merits of the injunction in fixing the punishment for the violation of it, which was done in flagrant defiance of the authority of the court. To allow

such offenders impunity for their misconduct would be a practical surrender of a sacred trust, which has been com- mitted to the judiciary by the people for their own protection and benefit. The power which the court possesses of punish- ing disobedience of its mandates is one of the safeguards for the due administration of justice. It is a necessary attribute of the court. The statute declares it, and in doing so gives no new power, but merely defines and limits an ancient rule of the common law."

The order granting the attachments against the said alder- men was, therefore, duly entered.

Mr. Kelly, by Mr. Britton, his attorney, duly appealed to the general term of the Supreme Court, from the order from the judgment of the special term directing his imprison- ment, and fixing the fine of $250, which stayed the execu- tion of the sentence until the final adjudication of the case in the apellate court, where the appeal is still pending. The proceedings against the other aldermen have, by common consent, been suspended to await the decision in the case of Mr. Kelly.

Mr. Negus, the plaintiff in the case, and the relator in the proceedings for an attachment, appeared by David Bar- nett, Eraustus Cook, and Hubert J. Hull, Esqrs. ; the defen- dants, by Winchester Britton, Esq., and Ward & Jencks. It is proper to add that the proposed change in the route of the railway has never been made.

Among the important cases in which the city of Brooklyn was concerned, is that of " John J. Hardy, against the city of Brooklyn." The action was brought in the city court to re- cover $50,000 damages for alleged nuisance, caused by a sewer outlet at the foot of Twenty-eighth street ; the case was tried before Chief Justice Neilson and a jury, and the plain- tiff's case was dismissed. The plaintiff appealed to the gen- eral term, and a new trial was ordered. The new trial took place before Judge Raynolds and a jury, early in 1882. This trial resulted in a verdict for the plaintiff for $4,122.85. An appeal to the general term was taken on the judgment en- tered on the verdict, and the judgment affirmed. The city again appealed to the court of appeals, where the judgment was again affirmed.

"Henry W. Sage, et al, against the city of Brooklyn." This case was tried in the City Court, before Judge McCue, and judgment ordered for the plaintiff for $12.659.61. ' The case was appealed by the city to the general term of the City Court, and judgment affirmed. The city then appealed to the Court of Appeals, and the judgment again affirmed.

"George C. Genet, against the city of Brooklyn." This action was brought to set aside assessments for widen- ing Sackett street Boulevard ; or, to recover $9,572 against the city, the amount of award for land taken. The case was tried before Judge Gilbert, who dismissed the plain- tiff's complaint. Whereupon the plaintiff appealed to the general term of the Supreme Court, and the judgment was again affirmed.

"The gutta-percha and rubber manufacturing company, against James Tanner, Collector of Taxes, &c." This action was begun in the Supreme Court, January 19, 1881, to cause the interpleader of the tax collectors of Brooklyn and New York to determine which city is entitled to tax levied upon plaintiff's business, it having been taxed in both cities. The case was tried before Judge Donohue, and decided in favor of the city of New York.

In the matter of the application to the Supreme Court of Andrew Wessel, and others, for a mandamus against the Board of Health, in the city of Brooklyn, and James Crane, Commissioner of said Board of Health. Proceedings com- menced in March, 1881. Motion for a writ of mandamus to

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HISTORY OF KINGS COUNTY.

compel the defendants to grant permits to plaintiffs for the removal of night-soil ; they refusing to deliver it to the con- tractor for taking the same from the city. Motion for the mandamus denied, and Wessel and the other plaintiffs took an appeal to the general term, where the order denying the motion was sustained.

These cases will give the reader a knowledge of the legal business in which the city of Brooklyn has been a party.

Police Justices .- We should have stated, in com- menting upon the Police Department, that in 1873, and for some time thereafter, there were six civil justices and one police justice in the corporation, the civil jus- tices having police powers. By subsequent acts of the legislature the number of police magistrates have been increased to four, and the number of civil justices re- duced to three.

Statistical History of the Municipal Depart- ment, for the years 1877, 1879, 1882, 1883.

Department of Finance, 1878 .- The total amount of the bonded debt of the city existing on December 2nd, 1878, in- cluding city bonds of every description, together with tax certifi ates, outstanding January 1st, 1878, was $10,906,500; less sinking fund, $4,660,747.45; total, $36,245, 752.55.

There were issued during the year 1878, under the several acts of the legislature, bonds and certificates as follows, viz .:

Brooklyn city bonds, for the completion of the New York and Brooklyn bridge, for balance due on requisitions for the years 1876 and 1877. $250,000 On account of requisitions of 1878 .. 1,400,000

Six per cents. .$1,650,000

Tax certificates, six per cent. . 1,250,000

Assessment fund bonds (renewed), five per cent ... . 1,050,000

Assessment fund bonds, W. & S. (renewed), five per cent. 100,000

Sewerage fund bonds (renewed), five per cent ... . 350.000

Total. $4,400,000

During the same period matured bonds and certificates were paid as follows, viz .:

Wallabout Bay Loan 7 per cent .. $45,000

Deficiencies prior to 1872, 7 per cent. 319,000

Fourth avenue improvement loan, 6 per cent. $15,000

Fourth avenue improvement loan, 7

per cent. 10,000

$25,000

Gowanus canal improvement loan, 7 per cent .. 24,000

Bushwick avenue improvement loan, 7 per cent .. . 16,000 South Brooklyn loan, 7 per cent. 100,000 Tax certificates, 7 per cent. $200,000 Tax certificates, 6 per cent 450,000

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The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884 Volume I, Part 138

Author: Stiles, Henry Reed, 1832-1909, ed. cn; Brockett, L. P. (Linus Pierpont), 1820-1893; Proctor, L. B. (Lucien Brock), 1830-1900. 1n Publication date: 1884 Publisher: New York : W. W. Munsell & Co. Number of Pages: 1114

Author: Stiles, Henry Reed, 1832-1909, ed. cn; Brockett, L. P. (Linus Pierpont), 1820-1893; Proctor, L. B. (Lucien Brock), 1830-1900. 1n
Publication date: 1884
Publisher: New York : W. W. Munsell & Co.
Number of Pages: 1114