New York (N.Y.). Common Council.

Minutes of the Common Council of the City of New York, 1784-1831 (Volume 10) online

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delivered [75] to the Common Council but that the Special Justices
shall cause such recognizances to be sued in any proper Court and the
monies recovered thereon shall be deposited in the City Treasury and
form a part of the fund for the support of the poor.

" As there are no words in this Act divesting the Common
Council of the right of directing prosecutions, I presume it will not be


contended but that they possess this power concurrently with the
Special Justices and that they are bound to put them in suit when
ordered by the Common Council.

The point in question I understand to be whether the Common
Council or the Special Justices possess the power of designating the
Attorney; or in other words whether the Justices have the power of
appointing an Attorney to commence suits in the name of the Corpora-
tion, not only without their consent but in defiance of their authority.
" An objection fatal to this pretension presents itself at the very
threshold of this enquiry. According to the established rules of law
a Corporation cannot appear but by Attorney and they cannot appoint
an Attorney otherwise than under their Corporate Seal. Now, as 1
presume the Special Justice will not contend that they possess the
power of compelling the Corporation to affix their seal to a Warrant
of [76] Attorney, they must fail in this pretension from the absolute
impossibility of carrying it into effect.

" By the Act concerning Counsellors &c. it is provided that every
person of full age and sound memory, other than defendants in cases
when Corporal punishments may be inflicted, may appear by At-
torney in every action in plea by and against him in any Court in this

" If the right of a Corporation to appear by attorney required
the sanction of a Statute the Courts of Justice would undoubtedly put
such an equitable construction upon this as would extend the benefit
of it to them : and, as it is presumed that the Corporation of this City
are not within the exceptions of the act, they might with all due defer-
ence to the authority of the Special Justices insist upon availing them-
selves of its provisions.

" But it may be contended that, aitho' the Corporation cannot ap-
pear otherwise than by Attorney and the right of so appearing is
sanctioned by Statute, yet that it does not follow that they must ap-
point him.

" An Attorney is a person appointed by another to do any thing
in his stead, and to contend that he may be appointed by any other
person is to contend for what is a solecism in terms.

[77] " It will be contended by the Special Justices, and it is upon
this and this alone that their pretension rests, that they are required
by the act to cause all such recognizances as are forfeited to be sued
in some proper Court, and that as they possess the power of causing
them to be prosecuted in the name of the Corporation they by neces-
sary implication possess the power of doing all such acts as may be

198 CITY OF NEW YORK 18 Jan. 1819

necessary to enable them to carry this power into effect. The ques-
tion then presents itself whether it is necessary that they should ap-
point the Attorney in order to enable them to sue, and whether it is not
possible that an Attorney appointed by the Corporation can conduct
a suit by the direction of the Special Justices. If this is possible in
the nature of things then the ground upon which they predicate their
claim fails to support them And as the Corporation have appointed
an Attorney and have declared it to be his duty among other things
" to commence all actions upon the laws of this State in cases when
the penalty is given to the Corporation " there is not a shadow of
ground to support this pretext upon the plea of necessity.

" Prior to the Act of April 1816 the Corporation possessed ex-
clusively the power of taking all orders relative to prosecutions for
breaches of such recogni- [78] zances, and it was required of them
that they should take all such orders relative to the premises as they
should deem suitable and necessary to preserve the good order and
welfare of the City.

" By the Act of April 1816 it is also made the duty of the Special
Justices " to cause such recognizances to be sued." By putting a reas-
onable construction upon this Act (and indeed the only reasonable
one which it admits of) it must mean that they possess this power
concurrently with the Corporation, and as it is made the duty of the
Corporation to take all orders &c. as before mentioned the Legislature
presumed that they would not disregard the injunctions of the Act but
would among other things appoint an Attorney, as this is an indis-
pensible order in relation to prosecutions ; and when they authorised
the Police Justices to cause recognizances to be put in suit, they pre-
sumed that the Corporation would do their duty by appointing an At-
torney for that purpose.

' This construction is not only reasonable but is in accordance with
the established rules for construing Statutes : for by preserving the
power of the Corporation unimpaired the penalties will be more
generally enacted than they would be if the power of enforcing them
was exclusively [79] confined to the Special Justices, and the intention
of the Legislature in passing this law undoubtedly was to subject the
retailers of Spirituous Liquors to a more vigilant inspection and rigid
observation of the laws and not to divest the Corporaton of any of
the coercive powers for this purpose. By this construction the last Act
does not infringe upon the first, and altho' subsequent acts repeal
preceding ones so far as they are irreconcilable, yet if the last admits
of a reasonable construction by which the provisions of the first can


be preserved inviolate that construction is to be given to it. By this
construction also the vested rights of the Corporation to regulate these
prosecutions remain inviolate and statutes in derogation of private
rights are even to be construed strictly.

" On the other hand the construction contended for by the Special
Justices is unreasonable in every point of view, for they are contend-
ing for a power which they cannot enforce, inasmuch as they cannot
affix their Corporate Seal to a Warrant of Attorney and the Corpo-
ration can also at any time release the action : the costs of proceeding,
in the event of failure would be thrown upon the Corporation and
they therefore ought to have the power of selecting an Attorney in
whose [80] vigilance and legal discretion they have confidence, and
the Corporation are alone interested in the monies which may be re-

" On the other hand no imaginable reason can be given why the
Legislature should deprive the Corporation of the power of appointing
their own Attorney to conduct their own suits a privilege which is
denied to none but fools & lunatics.

" If it is necessary to recur to authority in order to put this matter
beyond question I would refer to the practice under the laws of the
United States.

" By one of these laws it is enacted that the Collector shall take
bonds on the exportation of merchandise and ' shall put the same in
suit.' By another act it is provided that when any bond for the pay-
ment of duties shall not be satisfied on the day it may become due
' then the Collector shall forthwith and without delay cause a prose-
' cution to be commenced for the recovery of the money due thereon
' by action in suit at law in the proper Court having cognizance
' thereof.' These words or equally as strong and in the last case are
nearly the same with those relied upon by the Police Justices And yet
the Collectors have ever been required to deliver these bonds to the
United States Attorney to be sued. [81] Here then we have a prac-
tical construction of similar Statutes adopted in every district in the
United States and which is in accordance with what I contend for in
the case in question.

"If the construction which I put upon the Act is correct, the next
question which presents itself is what remedy is to be resorted to in
order to prevent the commencement of suits in the name of the Cor-
poration without their authority. This would be an offence which
would subject the Attorney to the severe animadversion of the Court
and would also subject all parties concerned in it to an indictment

200 CITY OF NEW YORK 18 Jan. 1819

for misdemeanour. The Court would also order the proceedings to
be discontinued and would compel the Attorney to pay all the Costs."

Very respectfully

(signed) Ogden Edwards.

' Report of the Law Committee."

" The Law Committee, to which was referred the representation of
the Attorney ' that the Police Magistrates claimed the right of ap-
' pointing an Attorney to sue out forfeited recognizances for Tavern
' Licences '- having taken the opinion of the Counsel on the same, in
which they concur, beg leave to refer the Board to that opinion an-
nexed. In addition to the [82] reasons given by the Counsel, the very
great impropriety of permitting an irresponsible person to this Board
to officiate for them is apparent. If an Attorney not authorised by
the Board has a right to commence an action without their order he
has an undoubted right to discontinue it without permission. H[e] may
compound with the offender and compromit the rights of the Board
without the possibility of detection, thereby rendering the penal laws
of the Community a private emolument and a source of public im-
morality. The penalties of the Corporation and of the State in which
we are concerned so far from exciting apprehension in offenders, are
a subject of complaint from the virtuous and of derision from the
vicious on account of the ease of avoiding the consequences. Security
against vice depends more upon the certainty than the magnitude of
penalties, and it may be asked what security have the Board that the
punishment will certainly visit the Offender when the Attorney con-
ducting the suit is not under the control of the Board.

" Your Committee have no apprehension that any of these con-
sequences would ensue in [83] the course of Mr. Graham's practice,
but once established as a precedent and you have no guarantee for
the observance of good faith. The Board does not allow to its officers
the power of dispensing charity. It is not for them to consider of
hardships and difficulties in enforcing the law but the single question
are they liable to the law. To bestow charity and relieve from pen-
alties is reserved exclusively in the Board, and altho' under the ar-
rangement of the Police Office the trust might not be abused as much
as by an officer of the Board, yet in the one case our redress is remote
and uncertain and in the other immediate and positive. Your Com-
mittee beg leave to offer the following Resolution :

' Resolved that no suit shall hereafter be commenced in the name
of this Board except by an Attorney duly authorised by the Board and


that if any suits shall be commenced by any person not so authorised
the Counsel be, and he is hereby instructed to apply to the Court in
which such suits shall be pending to dismiss the same and to make
him or them pay the costs.

" The Committee farther report that five or six suits have been
commenced by Mr. Graham under the direction of the Police Magis-
trates and [84] have made considerable progress toward judgment.
As the Police Magistrates proceeded in the business under an impres-
sion that the Statute gave them the power and not from any disrespect
to the Board and as it will be a saving of time and expence to permit
Mr. Graham to conduct these suits to judgment, your Committee
beg leave to offer the following Resolution:

" Resolved that the Counsel of the Board be, and he is hereby
directed to associate himself with J. L. Graham Esqr. to superintend
and direct as Counsel the suits now pending in the name of this Board,
brought by the said J. L. Graham Esqr. on forfeited recognizances of
Tavern Keepers.

' Your Committee, while on this subject, beg leave to remark that
in consequence of the penalty in the recognizance being One hundred
and twenty five dollars suits must be brought in the higher Court of
Record which not only delays the immediate punishment of the Of-
fenders & affords time to make interest to have the same remitted,
but in case of failure incurs a heavy expence to the Board. If the
penalty should be reduced to one hundred dollars [85] suits might be
brought in the Marine Court in which case the punishment would be
so prompt that your Committee believe it would be attended with
happy consequences in deterring offences. They therefore beg leave
to offer the following Resolution :

" Resolved that the Counsel prepare a Memorial and the draft of
a law for an application to the Legislature so as to amend the act
entitled ' An Act to lay a duty on Strong liquors and for regulating
Inns & Taverns ' as that the amount of the penalty in recognizances
entered into by persons selling by retail any strong or spirituous
liquors be reduced to One hundred Dollars."

(signed) W. F. Van Amringe
Thomas Bolton

The question having been taken on the report and resolutions, the
report was approved and the Resolutions agreed to.

The Committee to whom was referred the expediency of taking a
suitable portion of ground at the East River near Corlaer's Hook for

202 CITY OF NEW YORK 18 Jan. 1819

a public Walk or Promenade and a suitable portion of ground at the
North River near Fort Gansevoort for the like purpose and also of
enlarging and [86] repairing the Battery in an ornamental & durable
manner, Reported:

" That they have considered the subject with all the deliberation
and care that its importance demanded. On the one hand they were
sensible that the measure, if gone into upon the extensive scale pro-
posed by the Resolution, must add greatly to the public debt of the
City and finally require a considerable augmentation in the annual
Tax. On the other hand the Committee could not but see that the plan
submitted to them embraced great public improvements which if once
lost might not be retrieved: improvements which will contribute alike
to the recreation, pleasure and health of our citizens and are essen-
tially connected with the future splendour of our growing Metropolis.

" Before, however, your Committee give an opinion whether the ob-
jections arising from the increase of the City debt and the consequent
augmentation of the annual tax outweigh the advantages which will
flow from the contemplated improvements they beg leave to present
a general view of the subject, with some facts which in their opinion
are material to be brought under consideration to enable the Board
to arrive at [87] a just conclusion.

' The only public Walks South of the great Military Parade
ground are the Battery, the Park in front and the ground in the rear
of the City Hall and St. John's Square opposite St. John's Church
near Hudson Street. This last Walk belongs to Trinity Church and
therefore is not strictly a public Walk, tho' it is not probable it will
ever be applied to other purposes. The distance from the South line
of the Grand Military Parade ground and the Western point of the
Battery is about 3 miles. The distance from Fort Gansevoort to the
same point is a little less than Two miles and an half. The distance
from Corlaer's Hook to the Battery is about two miles and from
Corlaer's. Hook to Fort Gansevoort about two miles and an half. The
distance of St. John's Square to the Western point of the Battery is
rather short of one mile and a quarter, and from the Park in the rear
of the City Hall to the same point about three quarters of a mile.
A Line drawn from the East to the North River one mile from the
Battery passes through the Hospital yard. The population south of
the Hospital Yard somewhat exceeds Forty Thousand.

" That part of our City which lies south [88] of the Grand
Square or Parade ground contains probably from 2700 to 2750 acres,


! and when it shall be compactly built upon will have a population rather

i exceeding 250,000 souls.

" For the purpose of ascertaining at what era a condensed popu-
lation will extend to the Grand Square or Parade Ground, or in other
words will amount to 250,000 the Committee have thought it proper
to judge of the future by the past. This rule appeared the more
likely to lead to a correct anticipation because our City, our State and
our Country are in the vigor of youth. Its stride to manhood sur-
passes the most sanguine calculations. Every thing before us shews
that we are to be one of the greatest of nations. Our wealth and
resources keep pace with our increasing population ; and the enter-
prize, the intellect and character of the American people are a guar-
antee that their national and public improvements will correspond in
magnificence with the greatness & power of the Republic.

" To return to the question when will our City contain 250,000
souls? Soon after the War of the Revolution our numbers were
about 23,000. The census of 1790, the first which was taken under the
General Government, gives 33,000.

[89] The Census of 1800 gives 60,000 and that taken in 1810 gives
upwards of 96,000. Our population may be now calculated to in-
crease 40,000 every Ten years, and that increase will augment with
our augmented numbers. At present there are at least 125,000 and in
1820 there will be 135,000 Inhabitants. In 1830 there ought to be
nearly 180,000; and the Committee think themselves justified in con-
cluding that if the Almighty shall continue his favors to our City
and to our nation the City of New York will in 26 years from this
time contain 250,000 souls.

" In a free government, as ours is, its population constitutes its
wealth as it does its strength. Hence in 1785 and 1786 the popu-
lation of the City paid only an Annual Tax of $25,000. In 1792 and
1793 the taxes rose to $40,000 per year. In 1799 and 1800 it con-
siderably exceeded $100,000. In 1807 it amounted to $129,000. In
the year 1813, the first year of our late war with Great Britain, it
exceeded $174,000. In 1817 it amounted, including the State Tax,
to $374,311 7 %oo and in the last year 1818, owing to the reduction
of the State Tax to One instead of Two mills per dollar, the Tax upon
this City was reducecFTo $340,994 8 %oo-

" Before your Committee close their statement [90] of facts upon
which alone can be founded the calculations which must determine
whether the City of New York is able to meet the expenditure called

204 CITY OF NEW YORK 18 Jan. 1819

for by the proposed improvements the Committee beg leave farther
to state that by the report of the Special Committee appointed specially
with reference to the Battery an expence on that object alone must
be incurred little short of $120,000. By the report of the Street Com-
missioner to your Committee about $100,000 will be necessary to se-
cure the ground at Corlaer's Hook so as to give to the Inhabitants
forever a Walk looking up and down the East River. The land at
Fort Gansevoort will not cost much, the title being chiefly in the Cor-
poration. The right of the Corporation is proposed to be reserved.
Your Committee estimate that the cost of enlarging the Battery and
securing it permanently, of taking all the land required to be taken
at Corlaer's Hook and of reserving and taking land at Fort Ganse-
voort, so as to give a Walk there of about 1200 feet, will altogether
amount to $250,000.

" Your Committee farther state that the City Debt amounts to
nearly $1000,000 which if the whole debt bore an interest of Seven
per cent [91] would give an interest account against the City of
$70,000 per annum.

" The Revenue of the City in 1808 was $57,830. In 1817 it was
increased to $72,814 6 %oo- During the year 1818 it amounted to
$91,262 2 %oo- The Revenue will probably continue to increase with
the increase of the City. About the year 1823 it will be considerably
greater than it now is, as many leases which are now at a low rent
will then end and thenceforward produce a much higher income.

" Before the Committee conclude the detail which they have given,
they beg leave to observe that most of the preceding estimates and
calculations are not made with strict and accurate precision, nor so
meant to be understood ; but are intended to be sufficiently correct to
enable the Board to act wisely upon the matter now under considera-

" A general view of the subject is now before the Board. By the
details that have been given every member is able to count the cost
and say whether it can be paid. Some of your Committee have
thought the expence too vast to be encountered. Others have thought
that the property contiguous to these great Walks should be made to
bear the whole expence. Others have [92] thought it should be a
common expence borne by the Common funds of the City And an
opinion has been expressed that the expence should be met partly by
the general fund and partly by a local Assessment upon the con-
tiguous property. All however have agreed in this that public


Walks contribute to the pleasure and health of the people and are an
Ornament to a City. They agree too, that the points of land proposed
to be taken are the most eligible of all others. Those points are at
opposite and convenient distances from each other. The located
spots will give great and useful public walks to our citizens when New
York shall hold a rank among the first Cities of the world. The Bat-
tery may justly be considered one of the most elegant Walks that any
City can boast of. It is the pride as it is the ornament of New York.
Corlaer's Hook, tho' not equal to the Battery, falls little short of it
either in the extent or beauty of its prospects. The site proposed to be
taken above Fort Gansevoort will afford a considerable view of the
North River and open to the eye of the Citizen an entire view of the
Narrows. These three public Walks, the Battery, the Walk at Cor-
laer's Hook and that [93] upon the Hudson place New York beyond a
rival in the splendour of her promenades.

" Already does our population class our City with the second rate
cities of Europe. The revenue we carry into the National Purse, our
Commerce and the tonnage of our ships place us among the first.
The Committee believe the City to be able to carry into effect the
proposed improvements and to meet the necessary expence And they
believe the Citizens will cheerfully unite their efforts, provided a due
regard is shown to the general interests of the whole City.

" Under these impressions Your Committee respectfully recom-
mend the following Resolutions :

" I. That the Board reserve all the land under water west of
10 th Avenue from 14 th to 19 th Streets making a front of about 1200
feet for public purposes.

"II. That the Counsel be directed to take the necessary legal
steps to vest in the Corporation the land and the land under water
at Corlaer's Hook lying South of Grand Street and east of Corlaer's
Street to the permanent lines for the like purpose.

' III. That application be made to the [94] Legislature to obtain
a grant of their title to the lands of the Battery and the lands adjoin-
ing the same under water to an extent not exceeding 400 feet for
the like purpose.

' IV. That application be made to the Legislature to raise the sum
of $250,000 for the purpose of forthwith enlarging and completing
the Battery agreeably to the plan adopted by the Board, and also for
paying for the land and land under water to be taken at Corlaers'
Hook to be hereafter improved as the Corporation shall direct and

206 CITY OF NEW YORK 18 Jan. 1819

that the said sum be raised by Assessments upon the real and personal
property in this City as follows :

$62,500 in 1819
62,500 in 1820
62,500 in 1821
62,500 in 1822

" V. That application be made to the Legislature to authorise
the Corporation to borrow not exceeding the sum of Two hundred
thousand dollars for the purpose of making the aforesaid public im-
provements and that the said annual sums of Sixty two thousand five
hundred dollars be pledged to redeem [95] the same."

All which is respectfully submitted
(signed) R. Riker

G. Buckmaster
Leonard Kip
Samuel Akerly.

A motion was made to postpone the consideration of the same.
The question being taken thereon and a Division called, the members
voted as follows :

Affirmative. Mr. Recorder Aid" Morss M c Queen Buckmaster

Online LibraryNew York (N.Y.). Common CouncilMinutes of the Common Council of the City of New York, 1784-1831 (Volume 10) → online text (page 18 of 65)