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NEW YORK;
McSPEpon & BAKER, PRINTERs to THE CoMMON Council, 25 PINE Sr.
1848.
UNIVERSITY OF MICHICAN LIBRARIES








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Docum ENT No. 17.
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NOVEMBER 6th, 1848.
The following Report of the Finance Committee on the com-
munication from the Comptroller, on the subject of the Grand
street and Peck slip Ferries, was laid on the table and di-
rected to be printed and made the special order for next
meeting. -
DAVID T. WALENTINE, Clerk.
*=ºss
The Finance Committee, to whom was referred the com-
munication of the Comptroller, on the subject of the Ferry
lease, directed to be given to Messrs. Oliver Charlock and
others, respectfully
REPRESENT:
Doc. No. 17.] 324
That they have, during several sittings of the Committee, had
the subject under advisement, and have given to it a careful,
and as they believe, candid consideration. To aid them in their
desire to arrive at a just and correct conclusion in the premises,
they requested the Counsel of the Corporation to give them a
legal opinion whether the lease directed to be given was still
under the control of the Corporation. -
Such an opinion was given to the Committee by the Counsel,
at their meeting on the twentieth day of October last, which is
herewith referred to, annexed and marked (No. 1.)
On a subsequent examination of this opinion, the Committee
discovered, as they thought, that it was not sufficiently full to
meet the case, as the delivery of the lease to Messrs. Charlock
and others, was put upon the ground that the law presumed
acceptance of the lease by the grantees.
Your Committee well knew that the Comptroller had offered
the lease to the grantees, that they had not accepted it, that it
was still in his hands, and that he had asked instructions in the
premises.
Under these circumstances your Committee were desirous of
knowing, first, whether the law presumed acceptance when the
grantees refused to accept. Second, whether there could be a
delivery of the lease without the acceptance by the grantees;
and thirdly, whether if there were no delivery the lease was
still under the control of the Corporation.
A
For the purpose of being satisfied on these points, the follow-
* 325 [Doc. No. 17.
ing questions were proposed to the Counsel of the Corporation,
and his answer in writing requested. -
First—Can there be a delivery of a lease without an accept-
ance by the grantees 3 -
Second—Doés the law presume acceptance where the grant-
ees refuse to accept.
Third—If the Comptroller offered the lease to the grantees,
and they refused to accept it, is the lease now under the con-
trol of the Common Council.
On the thirtieth day of October your Committee received the
opinion of the Counsel in reply, which is herewith referred to,
annexed,and marked (No. 2.)
After a careful examination of the facts since the receipt of
the last opinion, your Committee have become satisfied that
when the lease was tendered to the grantees by the Comptrol-
ler, they could not or would not agree to receive it.
Such being the fact, the law does not presume acceptance by
them, and there has been no delivery. The lease is therefore
under the control of the Common Council, and your Committee
believe, that neither the law, nor just and fair dealing, requires
the Corporation again to make a tender of a lease which when
once tendered was not accepted.
The Corporation, by the preparation and tender of the lease,
did all that was required of it by the terms of its contract.
Doc. No. 17.] 326
The failure to accept by the grantees put an end to the con-
tract and all liabilities of the Corporation under it, and the
grantees have, by their own act, parted with all right to de-
mand fulfillment on the part of the Corporation of the terms of
the contract.
The Corporation was ready, willing, and offered to fulfill.
The grantees were not ready to accept and did not accept, and
here the contract became null and all rights under it ceased.
Your Committee believe that it is the interest, and should
therefore be the object of the Corporation to derive the largest
possible revenue from all ferries under its control. Under such
a policy, extended to all sources of revenue, other than that of
assessment and taxation, we shall aid to a degree in rendering
less onerous the burthens of the tax payers.
In this opinion we are fully sustained by the judgment of the
Common Council, as expressed in a resolution which passed
both Boards, and was approved by the Mayor on the twenty-
second day of March last. .
By the terms of that resolution no ferry lease was to be
granted, “except on proposals received pursuant to public ad-
vertisement for leasing the ferries respectively, in which case
the lease shall be awarded to the person or persons offering the
highest rent for the same. -- . *
To this resolution, and the policy recommended by it, we
respectfully refer your Honorable Body—and we will add, that
in our opinion its wisdom cannot be too strongly commended.
327 [Doc. No. 17.
No advertisement was made for leasing the ferry in question.
Parties desirous of making proposals were not informed by ad-
vertisement that the Corporation was ready to receive them—
and yet the resolution referred to above had never been re-
pealed. -
What may be the value of this ferry to the Corporation is
therefore not known, nor can it be, until the various competitors
for a lease shall make their respective bids.
But notwithstanding the grantees have no present claim on
the Corporation for a lease, we are of opinion, (as they may
not have been apprised that the law deprived them of a right
to demand it after they refused once to accept it) that it should
be tendered to all of them again by the Comptroller. *-
If, on such tender being made, or within five days thereafter,
each and all the grantees will consent, in writing, to receive
the lease, and all agree upon some person to whom it shall
be actually delivered for them, then the Comptroller shall
deliver it to the person designated. -
This recommendation we have deemed necessary because of
a difficulty and disagreement which has arisen among the
grantees, and to protect the Corporation against all liability.
If the grantees, however, will not, within the time designa-
ted, all agree to receive the lease, and all agree upon some one
person to receive the lease for them, then your Committee, be-
lieving the best interest of the City will thereby be promoted,
recommend the adoption of the following resolution: .
Doc. No. 17.] 328
Resolved, That in pursuance of the resolution passed on the
twenty-second day of March last, a public advertisement be
made for leasing the Grand Street and Peck Slip Ferries, to
Williamsburgh, Long Island, for a term of ten years from the
first day of May next, and inviting proposals. º
All of which is respectfully submitted,
Finance Com-
mittee Board
of Aldermen.
MOSES MAYNARD, Jr.,
WASHINGTON SMITH,
NIEL GRAY, -
JOS. BRITTON, tee Board of
Joseph JAMISON,) Finance commit-
ROBT. P. GETTY, Jissist. Aldermen
329 [Doc. No. 17.
To the Honorable the Common Council :
The Comptroller respectfully REPORTs,
That the counterpart of the lease for the Grand street and Peck
slip Ferries, to Williamsburgh, L.I., is signed by all the lessees,
and that owing to a division amongst themselves, the cause and
tendency of which is not as yet known to him, there are two
parties claiming to have delivered to them the leases executed
on the part of the Corporation, viz: Oliver Charlick, Esq., on
the one part, and Austin D. Moore, Esq., on the other part;
the latter gentleman by virtue of a certificate which he furnishes,
stating him to have been elected treasurer of the “Williams.
burgh Ferry Company” and signed by three other lessees.
Under ordinary circumstances the Comptroller would not
have hesitated to deliver the document aforesaid to the gentle-
man last named ; but in consequence of there being a diffi-
culty between the two parties, and the cause and tendency
thereof not being developed so as to form an accurate judg-
ment in the matter, he prefers leaving the direction for the de-
livery of said lease, to the expressed will of the Common
Council.
T. J. WATERS, Comptroller,
CoMPTROLLER’s OFFICE, -
New York, October 3, 1848.
Doc. No. 17.] 330
(No. 1.)
To the Finance Committee :
GENTLEMEN:—
The Williamsburgh Ferry has been run for many years by a
company of gentlemen whose lease expired on the first day of
May last.
In the earlier part of their term probably their lease was not
profitable. Three years ago in contemplation of new expendi-
tures, they asked for a renewal of their lease which was vetoed
by the Mayor, as premature, (their lease would expire on the
1st of May next). In March last, a joint resolution was passed,
declaring that all leases of ferries expiring thereafter, should be
put up at auction and granted to the highest bidder. In conse-
quence of which resolution, the old Ferry Company say they
were prevented renewing their application, near the close of
July, a new company made an application for the lease; of
this the old company had notice in fact, but supposing, as they
say, that it could not prevail against the resolution aforesaid, to
lease by auction, they paid no attention to it. In consequence
the new company obtained the grant of a lease without oppo-
sition.
A resolution passed both Boards on the 3d of August, direct-
ing a lease to be prepared and given to the new Company, of
the two ferries, Peck slip and Grand street, for ten years, at a
rent of ..per annum. -
331 [Doc. No. 17.
An Indenture was accordingly prepared in the usual form,
one part to be executed by the City and one by the lessees. It
was submitted to the Joint Special Committee, to whom this
subject had been referred, and their approval endorsed thereon.
The part which was to be executed by the lessees, was executed
and delivered to the City, and entered in their book of leases. .
The part to be executed by the City was duly executed in the
usual manner by the signature of the Mayor, and affixing the
seal of the City, duly attested by the Clerk. After execution
the Mayor delivered it to the Comptroller to be delivered to the
lessess. A dispute then arose among the lessees, to whom it
should be delivered, each party mutually notifying the Comp-
troller not to deliver it to the other.
In this position the Comptroller referred to the Common
Council for instrućtions. A debate thereupon sprung up, and
circumstances were disclosed, going to show that great injus-
tice had been done to the lessees. And the subject was refer-
red to this Committee for further investigation.
The first and only legal question which the subject presents,
is whether the matter is still in the power of the Common
Council. The counterpart of the lease executed by the City is
still in the actual possession of the Comptroller. If that has
not been delivered in contemplation of law, the transaction is
still inchoate, and may be arrested and reconsidered by the Com-
mon Council. But if the deeds have been executed and deliv-
ered they cannot be recalled—nor can they be invalidated—ex-
cept by positive proof that they have been procured by fraud,
in the concealment or misrepresention of material facts. It is
not for me to decide upon the facts which have been presented
to the Committee.
2
Doc. No. 17.] 332
All that I have heard, goes to show unfairness towards the
old company in procuring the lease, but nothing which af-
fects the terms of the lease itself, such as a misrepresentation of
value, &c. The non-publication of notice of petition, the improp-
er endorsement of papers by which the former lessees were kept
in ignorance of the application of the new Company, would
not be a sufficient ground on the part of the Corporation for
setting aside a deed made and delivered. But iſ the deed is
not completed by delivery, it is still in the power of the Corpo-
ration to review the whole transaction and to give the lease to
whom they please.
It is an undoubted principle that all deeds take effect from
delivery. It is not valid as a deed, and is in the power of the
granter until that is done. But the question, what is a de-
livery 3 is a more difficult one. Chancellor Kent lays down
the rule as follows: “If both parties be present and the usual
formalities of execution take place, and the contract is to all
appearance consummated without any conditions of qualifications
annexed, it is a complete and valid deed, notwithstanding it be
left in the custody of the granter.” 4 Kent Com. 455-6. .
And again in 1 J. C., 250, he holds that a formal delivery is
not essential if there be acts evincing an intention to deliver.
Our Supreme Court in 15 Wend., 656, decided that a deed
need not be delivered to the grantee in person, but may be de-
livered by a third person for the use of the grantee. In this
case the deed was executed by the Mayor, in behalf of the City,
and delivered by him to the Comptroller for the use of the
grantees. The delivery must be made by the party who exe-
cutes the deed. No farther delivery was contemplated by the
Mayor. The deed was not that of the Comptroller, he could
333 [Doc. No. 17.
not make delivery in the legal sense of the word. In all cases
of deeds by the City, the delivery by the Mayor to the Comp-
troller, or other person, to be delivered to the grantee, is the
legal delivery; the acceptance on the part of the grantee, be-
ing presumed where the consideration is paid or the deed is
beneficial to him, or the deed is made at his instance and by his
procurement. t
I am therefore of the opinion that this deed has been legally
delivered by the Corporation, and is no longer in its power.
All which is respectfully submitted,
WILLIS HALL,
Counsel to the Corporation.
(No. 2.)
OFFICE of THE Coussel of THE CORPORATION,
October 30th, 1848.
DEAR SIR:
In reply to your first question, I say there can be no delivery
of a deed without an acceptance express or implied.
To the second I say, that this is not a presumption juris and
de jure, as the lawyers call it, which is absolute in its nature
and cannot be rebutted, but if the grantees refuse to accept it,
it destroys the presumption arising from the facts stated in my
opinion. - - *
Doc. No. 17.] 334
To the third question, I reply, if the Comptroller offered the
lease to all the grantees and they all refused, there has been
no delivery, and the deed is still in the possession of the Com-
mon Council, and under their control.
Respectfully your ob’t, serv't,
WILLIS HALL,
Counsel to the Corporation.
MOSES MAYNARD, ESQ.,
Chairman of the Finance Committee.