Which was adopted by the following vote: Affirmative-The Mayor, Comptroller, President of the Board of Aldermen and President of the Department of Taxes and Assessments-4. The COMPTROLLER presented the following: CITY OF NEW YORK-FINANCE DEPARTMENT, September 25, 1888. To the Board of Estimate and Apportionment: On July 26 last, the petition of Bankson T. Morgan for payment of costs, counsel fees and expenses incurred by him in the action of The People on the relation of Edward Hogan vs. Morgan, brought in the year 1874, together with a copy of an act (Chapter 574) passed June 9, 1888, was referred to the Comptroller for investigation. This action was brought against Mr. Morgan in the Court of Common Pleas, to test the question of his title to the office of Police Justice, to which he had been duly appointed on or about October 25, 1873, and on trial, judg ment was directed in favor of the defendant, which on appeal to the General Term, was unanimously affirmed. The Court of Appeals also affirmed the judgment of the lower Court, thus determining that Mr. Morgan was entitled to the office to which he had been appointed. According to a bill of particulars attached to his petition it appears that he has expended for counsel fees in defending his title to the office, the sum of $5,294.90, which he asks this Board to audit and allow as provided by Chapter 574 of the Laws of 1888, amending Section 196 of the New York City Consolidation Act of 1882. By this act the Board of Estimate and Apportionment is authorized to audit and allow, as charges against the City, the reasonable costs, counsel fees, with interest and expenses, paid or incurred by any Police Justice, who shall have been a successful party in any proceedings to remove him from office, or to review or prohibit any such removal, or to obtain possession of his office, and the Board is authorized and directed to include the amount so audited and allowed in the taxes to be levied and raised for the year following such audit. By an examination of the claim of the petitioner, pursuant to Section 123 of Chapter 410, Laws of 1882, it is shown by the evidence of the claimant in person, duly sworn to, that he paid the sum of $5,294.90 as counsel fees in the said proceedings against him as a Police Justice, the several checks therefor drawn by him during the years 1875 and 1876, being exhibited at said examination, the record of which is herewith submitted. In pursuance of the provision of Section 211 of the Consolidation Act of 1882, as amended by Chapter 246 of the Laws of 1886, which provides that no appropriation or payment for the contesting of the office of public officers whose salary is paid from the City Treasury, shall be paid to any but the prevailing party, nor unless the chief officer of the Law Department and the Chief Justice of the Court of Common Pleas of the City and County of New York certify in writing who is the prevailing party and the value of the services rendered in the case; the certificates to that effect are also herewith submitted by Hon. Henry R. Beekman, Counsel to the Corporation, and R. L. Larremore, Chief Judge of the Court of Common Pleas, New York, both dated September 18, 1888. I also submit a communication from the Counsel to the Corporation explaining the legal points involved in this mat ter, from which it appears that it is competent for this Board to audit and allow the claim of the petitioner with interest on the amount, as provided by Chapter 574, Laws of 1888, provided the counsel fees paid by him are reasonable. I therefore submit a resolution providing for the audit of said claim and the allowance of such an amount, with interest, as the Board of Estimate and Apportionment may deem proper. Respectfully, THEO. W. MYERS, Comptroller. LAW DEPARTMENT, OFFICE OF THE COUNSEL TO THE CORPORATION, Hon. THEODORE W. MYERS, Comptroller: Sir, I am in receipt of your communication of the 4th ultimo, transmitting petition of Bankson T. Morgan to the Board of Estimate and Apportionment, for payment of costs, counsel fees and expenses incurred by him in the action of The People on the relation of Edward Hogan vs. Morgan, in or about the year 1874. You state that these papers are submitted to me for such action and legal advice as are required in the case, for the guidance of the Board of Estimate and Apportionment. The petition of Mr. Morgan shows that he was duly appointed a Police Justice on or about the 25th day of October, 1873; that while he was engaged in the performance of his duties, as such justice, an action was begun against him in the name of the People on the relation of Edward Hogan, in the Court of Common Pleas for the City and County of New York, calling in question his title to the office; that the action was brought to trial, and a verdict directed in favor of the defendant. Upon an appeal, taken from the judgment entered on this verdict, to the General Term of the Court of Common Pleas, the judgment was unanimously affirmed. An appeal was taken thence to the Court of Appeals, which Court also affirmed the judgment of the Court below, thus determining that Mr. Morgan was entitled to the office to which he had been so appointed. It also appears from the petition that Mr. Morgan, in defending his title to the office, has expended for counsel fees, according to a bill of particulars attached to the petition, the sum of $5,294.90. The prayer of the petition is, that the Board of Estimate and Apportionment audit and allow these expenses. The application is based upon the authority of Chapter 574 of the Laws of 1888, amending Section 196 of the New York City Consolidation Act of 1882. By this act, Police Justices who have been successful parties in proceedings to remove them from office, or to review or prohibit any such removal, or to obtain possession of their offices, are included within the jurisdiction conferred upon the Board of Estimate and Apportionment, by the section in question, to audit and allow, as charges against the City, the reasonable costs, counsel fees, with interest, and expenses heretofore paid and incurred, or which shall hereafter be paid or incurred by the persons therein named, in the course of any such proceedings. It is, therefore, competent for the Board of Estimate and Apportionment to entertain the application now made by Judge Morgan, and to audit and allow, as charges against the city, the counsel fees, with interest, stated in the petition to have been paid by him in the defense of his title to his office, provided the counsel fees so paid are reasonable. Section 211 of the Consolidation Act, as amended by Chapter 246, Laws of 1886, provides that no appropriation or payment for the contesting of the office of Mayor, or any seat in the Board of Aldermen, or office in any department, or the office of any officer, whose salary is paid from the City Treasury, shall be made to any but the prevailing party; nor unless the chief officer of the Law Department and the Chief Justice of the Court of Common Pleas of the City and County of New York, certify in writing, who is such prevailing party and the value of the services rendered in the case. This section should be read in connection with Section 196, and therefore requires in the present case the production before the Board of Estimate and Apportionment of the above-mentioned certificates as a condition of the right of said Board to make the desired appropriation. Should the Board of Estimate and Apportionment audit these charges, it will then become its duty to cause the amount to be included in the final estimates for 1889. I am not aware that there are any other points upon which it is probable that the Board of Estimate and Apportionment will desire my advice. Yours, respectfully, HENRY R. BEEKMAN, Counsel to the Corporation. |