Roosevelt a. Draper. The complaint was as follows: TITLE OF THE CAUSE. Cornelius V. S. Roosevelt, plaintiff, on behalf of himself and of all interested, respectfully shows, that he is now, and has been for many years, a resident and tax-payer in the city of New York, owning and paying taxes on real and personal property, situated therein, and that he is a citizen of the city and State of New York, and of the United States. That the city of New York is incorporated by various acts of the Legislature, and charters, by the corporate name of the Mayor, Aldermen, and Commonalty of the city of New York, and as a corporation has certain legislative powers. That said corporation, with the assent of the State Legislature, has borrowed money from time to time, and issued stock therefor, and is now liable to pay a portion of the debt so created. That the plaintiff, in common with other inhabitants, is taxed for the purpose, among other things, of redeeming the city debt, and paying interest thereon; that the plaintiff is also holder and owner of a portion of the city stock, created as aforesaid, representing more than a hundred dollars of said debt, payable by the city, with annual interest, and the plaintiff is to this extent a creditor of said corporation. And the plaintiff further shows, that on or about the 22d day of February, 1844, the said corporation, in the exercise of its legislative powers, passed an ordinance creating a sinking fund for the redemption of the city debt, or stock, and the payment of interest, appropriating and pledging, among other things, the net proceeds of all real estate belonging to the city, for the redemption of the principal of said debt, and appropriating and pledging, among other things, the interest accruing on all bonds and mortgages belonging to the city, for the payment of the in terest of said debt. That by said ordinance, the management of the sinking fund was intrusted to certain officers, being the mayor, comptroller, and treasurer of said city, the chairman of the finance committee of the Board of Aldermen, and the chairman of the finance committee of the Board of Assistant Aldermen, for the time being, who collectively are designated by the general name of the Commissioners of the Sinking Fund of the city of New Roosevelt a. Draper. York; and it was provided that said commissioners might sell real estate belonging to the corporation, and not in use for, or reserved for public purposes, at public auction, at such time and on such terms as they might deem most advantageous for the public interest; that at least twenty days' previous notice of the time and place of such sale, including a description of the property to be sold, should be given, by publication in each of the newspapers employed by the corporation, and that no real estate not under lease should be sold for a less sum than the same might be appraised at by the commissioners of the sinking fund, and the street commissioner, or a majority of them, at a meeting to be held, and an appraisement made, within one month prior to the date of sale. It was by said ordinance also provided, that no grant should be made by virtue thereof, except for a specific consideration to be paid in cash, or in five annual installments, secured by bond and mortgage on the premises granted, with annual interest at the rate of seven per cent. per annum, the first installment to be paid on the issuing of the grant. And the plaintiff further shows, that the existing charter of the city, as amended in 1849, appears to have changed, in some respects, the executive control of the city finances, but that by an act of the State Legislature of the State of New York, passed June 20, 1851, to enable said corporation to increase its debt, it was, among other things, enacted, that the ordinance of 1844 should not be amended by the corporation in its legislative capacity, without the consent of the Legislature, except by appro priating additional revenue to said sinking fund, and that said ordinance should remain in full force until the whole of the debt created by virtue of the act, entitled "An Act creating a Public Fund or Stock, in the City of New York, to be called the Croton Water Stock, and in relation to the Sinking Fund of said City," passed May 13, 1845, and by virtue of the act of 1851, should be fully redeemed. And the plaintiff further shows, that the stock created by the last-named acts has not been fully redeemed; but, nevertheless, the said corporation, disregarding the provisions of said amended charter of 1849, and of said act of the Legislature of 1851, and assuming, without the consent of the State Legislature, to act in their legislative capacity, passed a resolution, adopted by Roosevelt a. Draper. the Board of Aldermen on the 8th of December, by the Assistant Aldermen on the 10th, and approved by the Mayor on the 20th of December, in the year 1852, which resolution is in the following words: Resolved, that the land to be made on the North River, with the bulkhead between Gansevoort and Twelfth streets, be sold to D. R. Martin, or any other applicant for the purchase thereof; and that it be referred to the commissioners of the sinking fund to fix the terms and price, the proceeds of which to be paid into the sinking fund for the redemption of the city debt. And the plaintiff further shows, that the land referred to in said resolution was the property of said corporation, not in use for, or reserved for, public purposes, and was pledged to the redemption of the city debts. That, as plaintiff is informed and believes, various grants of soil under water have been made to the said corporation by the original charter of the city, and by successive acts of the Legislature of the State; subject, however, to the right of pre-emption of adjacent owners; and that the land referred to in said resolution is part of the said soil under water. That, prior to 1844, the United States of America became seized of the upland, next adjacent to the easterly boundary line of the land under water sold to defendant, Varnum, as referred to in said resolution, and hereinafter stated; but that the right of pre-emption has never been exercised as to said land under water; and that the said United States of America, by deed dated October 12, 1850, granted and conveyed the said upland to the said corporation in fee simple. And the plaintiff prays leave to refer at large to the original charter and to the acts of the Legislature above mentioned, viz.: to an act entitled "An Act relative to improvements touching the laying out of streets and roads in the City of New York, and for other purposes," passed April 3, 1807. Also to the "Act relative to improvements in the City of New York," passed February 25, 1826; and also to the act entitled "An Act to establish a permanent exterior street or avenue in the City of New York, along the easterly shore of the North or Hudson River, and for other purposes," passed April 12, 1837. That, nevertheless, the mayor, recorder, chamberlain, and other officers, named in the ordinance of 1844, as commissioners Roosevelt a. Draper. of the sinking fund, held meetings, as plaintiff is informed and believes, for the purpose of complying with said resolution; and a majority of such officers, at a meeting held December 24, 1852, in violation of the ordinance of 1844, adopted a resolution, fixing the terms of sale as follows: Twenty-five per cent. of the purchase money to be paid on the delivery of the deed, the balance to remain on bond and mortgage for five years, with interest at the rate of six per cent. per annum, payable semiannually; the mortgage to contain the usual clause, providing that the principal shall become due in case the interest remains unpaid sixty days after the same is due; and the grant or deed to contain a covenant, guaranteeing to the corporation the privilege of depositing on said premises, coal ashes from the 5th, 8th, 9th, 15th, and 16th Wards, until said premises are filled in that, as plaintiff is informed and believes, there was no report made in the course of the proceedings by the street commissioner and comptroller, of the sum which, in their judgment, should be paid for the grant of the land under water: that, as plaintiff is informed and believes, there was no appraisement of the value of the land, either under water or out of water, made by the street commissioner and commissioners of the sinking fund, preliminary to the sale. That the sale was not made at public auction; but, on the contrary, a resolution to that effect, offered by the recorder in the course of the proceedings, at a meeting held December 22, 1852, was negatived: that, as plaintiff is informed and believes, no previous notice of sale was given by publication twenty days before; but, on the contrary, a resolution, providing for the publication of the resolution of the Common Council in a time and manner likely to attract bidders, offered by the same officer on the same occasion, on December 24, 1852, was also negatived; and that a similar disposition was made of two further resolutions, offered by said officer, one to fix a maximum price of three hundred thousand dollars, and the other to fix the highest sum offered as a minimum price, and to accept the highest offer made by a responsible bidder above that sum. That on the 27th day of December, 1852, the said officers, at a meeting held that day, notwithstanding the dissenting votes and written protest of the recorder and chamberlain, adopted a resolution, fixing the price of said property at the sum of one |