18 How. Pr. 572 | New York Court of Common Pleas | 1860
It is objected to this motion, that the fifth section of the act, (Laws of 1859, p. 1127), under which it is made, is unconstitutional. The constitution declares (Art. 3, § 16,) that “ no private or local bill, which may be passed by
I think the fifth section comes clearly within the subject of the act, as expressed in its title. The amount of the revenue bonds, and the amount of the tax to be raised by their redemption, will depend upon the amount of the judgments to be paid; and if any of those judgments should be reversed, and judgment given for the city; or if any of them should be reduced in amount, through the steps which the comptroller is authorized to take by this section; the amount for which revenue bonds are to be issued, or at least the amount to be raised by tax, in 1860, for their redemption, will be proportion-ably lessened. A proviso, therefore, in an act authorizing the supervisors to raise money by tax, which contemplates the possible reduction of the amount to meet which the tax is to be imposed, is as much a part of the subject of the act, indicated by the title, as any other part of it. If the act had named the sum which was to be raised to meet the claims of the police force, and the judgments referred to, there might be some-
An affidavit of the comptroller, that he has reason to believe that the judgments were obtained by collusion and fraud, is not of itself sufficient to entitle him to have the judgments opened or reversed. His belief, in that respect, shown to the court, is sufficient to entitle him, in the language of the act, to “ take all proper and necessary means to have them opened or reversed,” but it rests in the sound discretion of the court whether the application will be granted or not.
The judgment in this case "was for damages arising from the settlement and cracking of the plaintiff’s buildings, the referee finding that the foundations were weakened by water flowing into the cellars of the buildings from one of the city sewers— the mouth of the sewer being obstructed. The case, which was eminently one to be tried by a jury, was referred, by the written consent of the corporation counsel, to a single referee. The only witness who testified that the buildings settled and cracked, in consequence of the water flowing into the cellar from the sewer, was the plaintiff himself. A builder was called to prove the damages, whose testimony is embraced in four lines—that he had examined the buildings, and that it would cost all of five thousand dollars to put them in the same condition, as nearly as may be, as they were in before the water came in. The counsel of the corporation was not present at the hearing before the referee, but one of his assistants acted in his stead. Ho witnesses were called on behalf of the city. Ho examination of the buildings, on the part of the city, either as to the cause of the injury or as to the extent of the damage, appears to have been made; for, I take it, from the diligence shown in procuring affidavits to resist this motion, that if it had been the fact it would have been shown. The builder was not
The comptroller swears that he knows that he will be able to prove, if a new trial is granted, that the houses were built cheap, for tenement houses, upon made soil, recently filled in from the waters of the East river, and were liable to settle and crack; that other buildings in the same neighborhood have also settled and the walls cracked, arising principally from the character of the newly made soil upon which they were erected. And this fact, certainly a very important one, is neither controverted nor questioned in the affidavits made on behalf of the plaintiff. The comptroller further swears that he knows that he will be able to prove that the damages sustained by the plaintiff, in reference to the buildings, did not exceed $500; that he has caused them to be examined by competent builders, to ascertain the amount of the actual damage sustained by the plaintiff—and will be enabled to show that the principal damage was done to the rear walls; that no other damage of any importance was done to the property; that the whole damage does not exceed the sum before mentioned, and that such builders offer to rebuild the entire rear walls for the sum of $1,000, and completely restore the plaintiff’s property to its former condition.
The plaintiff swears that he met the persons sent by the comptroller; that they only examined the outside of the houses, and did not go through them, or examine the side
I think, upon the facts here presented, that we are called u¡3on to open the judgment, and order a new trial. The discretion with which courts are clSthed to order new trials, is very well expressed by Mr. Graham, after a full review of the authorities:—“Error,” he says, “is the strict right of the party relying upon the legal conviction of the court; but motions to avoid verdicts take a wider range, and are, for the' most part, addressed to the discretion of the judge, upon the equity and conscience of the case.” (Graham on New Trials, 1st ed.)
In view of the facts submitted on the part of the comptroller, and of the manner in which the case was defended, I think we are called upon to interpose for the protection of the interest of the city, and I shall therefore direct that the judgment be set aside and a new trial ordered.
William Joyce agt. The Mayor, &c.
John Kelly agt. The Mayor, &c.
Charles Brush agt. The Mayor, &c
All the questions of law involved in the respective motions made in these causes, have been decided in the preceding case of Outwater agt. The Mayor, &c.; and the same decision will be rendered here.