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 II, Part 156

Author: Stiles, Henry Reed, 1832-1909, ed
Publication date: 1884
Publisher: New York, W. W. Munsell & Co
Number of Pages: 1345

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 II > Part 156

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English, was the editor of The Insurance Times, a paper published once a month in New York, devoted to the insurance interest not only in this country, but in both hemispheres, as its editor, with much alleged vanity, claimed. Some time in September, 1870, the editor of The Times published an article in it, of his own motion, highly eulogistic of Mr. Hope, in which he says : "One of the most prominent fire underwriters in the United States is George T. Hope. We have few so thoroughly trained to the business." He then proceeds to give a history of Mr. Hope's career and success in his business. "Mr. Hope's mind," he continued, " is peculiarly adapted by the breadth of its range and views, and its capacity to observe and master at the same time the minutest details, to preside over the affairs of great and useful corporations. Nothing is too large for him to grasp, nothing too small to escape his observation. Although his suc- cess makes slight envy, none can cavil at the means by which it has been attained, for none can excel him in liberality, can- dor, truthfulness and honor ; * * * * * he is not what is com- monly called an eloquent speaker, but there is a logical direct- ness in his statements and an earnestness in his manner which convinces every hearer of his perfect sincerity and the intelligent comprehension of the subject of his remarks."

As was well said by Mr. Winslow, in opening the case to the jury, " that a man, who is an honest man, could write such an article and publish it in his paper, and in a few months turn around and libel the object of his eulogy as he has, in the most atrocious manner, and in a great variety of forms and methods ; but the plaintiff, Mr. Hope, became satisfied that the defendant was not such a conductor of an insurance paper as was entitled to respect and encouragement ; accordingly he notified him that he did not want his paper, and that he did not propose to adver- tise in it any more. Then the gates of defamation and vitupera- ation were opened, and a torrent of abuse was poured upon the plaintiff by the defendant without the slightest discretion as to consequences or apparent regard for the laws of the land. In his paper he described Mr. Hope as ' a dreadful incubus on the Continental Fire Insurance Company.' Very soon after he wrote another article for his paper holding Mr. Hope up to ridicule and contempt, censuring his manner, and endeavoring to under- mine the respect and confidence of the community, and of his own company, by this sort of contempt." He finally charged Mr. Hope with writing the fulsome eulogy on himself, por- tions of which we have quoted. Finally, through a series of articles, English libeled Mr. Hope in a most merciless manner, and for these libels the action referred to was brought.

Mr. Winslow conducted the case for the plaintiff, Mr. Van Cott not being present at the trial. His opening to the jury is an effective and admirable presentation of the plaintiff's case. Some of its language was scathing, causing the defendant to writhe under the lash of his invectives.

The plaintiff rested his case after proving the libel and the motives for it, and then the court adjourned for the day. The next morning the counsel for the defendant proposed to arrest the continuance of the trial by the defendant making certain concessions and admissions, by appealing to the generosity and magnanimity of Mr. Hope. They were assured that nothing but a full and complete retraction of all that had been said against Mr. Hope in the defendant's paper, and an admission of the falsity of the same, would be listened to, and it was doubtful if even that could be listened to by Mr. Hope. But at last, on consultation, a document was prepared and signed by Eng- lish containing one of the most extraordinary recantations of the libels and self-accusations that ever appeared in a court of justice. There were five distinct admissions or paragraphs of retraction and withdrawal, some of which he admitted were un- true, and in all of them with his retraction he said " he sincerely regretted their publication." He agreed to pay all costs and ex- penses incurred by Mr. Hope in connection with such publica-

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tions under trial, and he instructed his attorney, Mr. Moses, to read this extraordinary paper, signed by himself, to the jury, and promised in the same paper to publish it entire in the next number of his paper, The Insurance Times. Upon the foregoing statement and retraction, and the immediate payment of all costs and expenditures of Mr. Hope, and a due compliance of said paper, the cause was discontinued. And thus ended one of the most important and interesting cases under the law of libel ever tried in any court.

HENRY W. SAGE v. CITY OF BROOKLYN.

PERHAPS there is no case on record that more essentially affects the property-holders not only of Brooklyn, but in the County of Kings and in the State. It decides the important question touching the rights of the city of Brooklyn to take real estate from property-owners for streets, and how and when compensation therefor shall be made. The action was brought against the city of Brooklyn by Mr. Sage in the Brooklyn City Court, to recover awards made to him for lands taken to widen and extend the Sackett street boulevards, near Prospect Park, in the city of Brooklyn. The land was taken for public use under the Statute of 1868 and the Act of 1870, relating to the boule- vards. It appeared that Mr. Sage, the plaintiff, had already paid a large assessment imposed upon his adjoining land for the supposed benefit of improvements. But when he applied for payment of his awards for his land buried under the boulevards, the city refused to pay him, on the ground that the assessment for the payment of the awards not having been col- lected, there were no funds in the treasury that could be law- fully used for such payments.

The plaintiff's counsel, Mr. Winslow-then of the firm of Van Cott & Winslow-insisted that the city had taken the property of the plaintiff and thus became his debtor, and had been such for the term of ten years. Mr. Winslow based the action on the ground of such indebtedness, and that the State made it the duty of the city to pay at the time of taking; and whether this W88 80 or not, to allow the city to take lands for such purposes, without payment, would be in legal effect a violation of the Constitution, which provides that private property cannot be taken for public use without just compensation.

As has been seen, Mr. Winslow held this opinion against that of a large majority of the members of the Bar.

The plaintiff's demand was most ably contested by the city, through very eminent counsel, who appeared and defended. The trial resulted in a verdict for the plaintiff, upon which judgment was duly entered. An appeal was taken to the Court of Appeals, where, after arguments by the respective counsel, of extraordinary ability and learning, the plaintiff's judgment was in all things affirmed. The plaintiff recovered a large sum of money to indemnify him for his property taken from him by the city.

There will be no more taking lands for public use without just and immediate compensation.

To meet the emergency caused by this decision, the Legis- lature of 1883, with the advice and approval of the Mayor of Brooklyn, passed an act authorizing the issue of bonds by the city to the amount of about $300,000, with which to pay out- standing awards for which the city had become liable under circumstances the same in principle as that of Sage vs. The City of Brooklyn.

THE CASE OF THE NEWSPAPER REPORTER.

Soon after the election of Judge Sclah B. Strong as a judge of the Supreme Court of the State, in 1852, he presided at a term of the Kings County Oyer and Terminer. During the term a very important case came on for trial. A well-known news- paper reporter had been indicted for the murder of his infant

child. The babe was in its cradle while the father was st break- fast; its cries annoyed him, and, seizing a carving-knife, he sprang to the cradle and nearly severed the child's head from its body. He was arrested, committed to prison, and, as we have said, indicted and brought to trial. For some reason, he had failed to retain counsel, and proposed to conduct his own defense, but was manifestly incompetent. It happened that William C. Prime was sitting in the Bar, and, touched by the prisoner's helpless position, proposed, in case some other mem- ber of the Bar would assist him, to undertake the prisoner's defense. A distinguished lawyer of the St. Louis Bar, who was in Brooklyn on business, promptly offered his services. A couple of days was given them for the defense, and on the trial the ples of the prisoner's insanity was interposed.

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 public 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 clergyman, "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 & 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 srose and, with some excite- ment in his manner, exclaimed: "Your Honor will plesse 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 near being successful. If he in a fit of insanity wrote & poem on a sofa, why may we not ssy our client was inssne 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, an ineffectual effort 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. THE CITY OF BROOKLYN.

THIS was a very important and hotly contested suit. The litigation grew out of the Bond street scwer and its laterals in 1860-61. This action was begun in 1863, to recover $50,000 against the city for alleged breach of contract. Some idea of its importanoe may be gained from the fact that those two distin- guished lawyers, Henry C. Murphy and Hon. John G. Sohu- 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 in 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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amounting in all to $623.79. This, of course, was a signal defeat for the plaintiffs, 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 cause 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 claim as to be a substan- tial success to the city." The precise amount found for the plaintiffe 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 costs 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' claim were all shut off by the Referee. The manner in which Mr. Has- kins conducted the case as Referee was generally commended, his mind seemed 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

The following are important cases, in which the city of Brooklyn has been interested, but to which we can 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 Mitchell, 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 catch 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 Vs. THE MAYOR AND COMMON COUNCIL OF BROOKLYN.

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

On February 6, 1827, LEFFERT LEFFERTS, who had presided on the Bench of the Court of Common Pleas with much acceptability to the public 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 successor 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 Radcliff; 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 culture. 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 Council 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 city 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 Council to recover of the city 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 city of Brooklyn, had been lawfully laid out and opened, the east line of which and along and adjacent to the premises of Judge Radcliff; 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 December, 1850, it was elaborately argued by the distinguished counsel for the respective parties, and the executors of Judge

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Radcliff 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 under rightful authority contained in its charter, grades and levels a street, an action will not lie by an adjoining owner whose lands are not actually taken for consequential damages to his premises, there being no want of care or skill in the execution of the work of digging, and in the absence of any provision in the charter 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 precipi- tated into the pit dug.

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

It was a fearful blow upon Judge Radcliff; he saw his beauti- ful home invaded, its choicest embellishments destroyed and taken away from him by a great city, a municipality founded on justice and the sanctity of the rights of citizens to their property, and appealed to the laws for his rights, and when the courts repeatedly decided against him, the intellect of the strong man almost gave way, and the trouble which it caused him hurried him to his grave. It was one of those cases 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 described, and the decision of the case, a heavy retaining wall was built between what remained of the grounds and the street, which permanently protected 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. Shearman.

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

THERE are few cases in which the city of Brooklyn has been a party, the history of which is more interesting than this. It was one of several strongly litigated cases containing the same cause of action-litigation like that of Jarndyce v. Jarndyce, which seemed almost interminable. The contentions and bitter enmi- ties which it engendered made the village of Brooklyn-and afterwards the city 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 any 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 piece of land in Brooklyn, extending from the present Fulton street to near Bridge street. Subsequently Mr. Martin became the owner in fee of that and some other tracts 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 rope-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, carriages, and embellished with elegant buildings, to conceive that it was once

used, for many years, as a rope-walk; but such was the case. It was so occupied from 1811 till 1828.

On March 3d of that year two petitions were presented to the Trustees of the Village of Brooklyn, pursuant to the 18th section of an Act of the Legislature, entitled "An Act to reduce the law incorporating the village of Brooklyn, and the several acts amendatory thereof," into one act, 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 of Washington street from Concord to 'Fulton streets, and the other for the opening of Adams street from its then present termination, near Concord, 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 intersects the southern boundary of the land of John Dikeman, running thence in a southerly direction on the said continued line of the easterly side of Washington street 88 feet; thence 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; thence easterly along said Dikeman's land 60 feet. The piece of land purchased by Mr. Martin of Mr. Tillary ex- tended from the southern boundary line just described, 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; thence northerly along the line of said Tillary street 60 feet and 3 inches to the westerly line of Washington street; thence 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; thence easterly along said Martin's land 60 feet to the place of beginning."

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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 II, Part 156

Author: Stiles, Henry Reed, 1832-1909, ed Publication date: 1884 Publisher: New York, W. W. Munsell & Co Number of Pages: 1345

Author: Stiles, Henry Reed, 1832-1909, ed
Publication date: 1884
Publisher: New York, W. W. Munsell & Co
Number of Pages: 1345