Governor Thomas Dongan's Commission Appointing John Pell a Justice of the Court of Sessions in 1685

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Westchester County was formed by the so-called "Dongan Assembly Act" of 1683.  At its formation on November 1, 1683, the County included the Manor of Pelham then owned by John Pell, the nephew and principal legatee of Pelham founder Thomas Pell who died in late September, 1669.  Within a matter of months, the Court of Sessions of the County of Westchester was formed to handle judicial matters and held its first session on June 3, 1684 (Old Style, Julian Calendar).  It appears that John Pell was appointed First Judge of the first Court of Sessions.

The Dongan Assembly Act of 1683, named after Thomas Dongan (New York's colonial governor at the time), designated the tiny Village of Westchester as the County Seat where the Court of Sessions held many of its proceedings.  The Village of Westchester once stood roughly where today's Westchester Square is located in the Bronx and was founded by settlers to whom Thomas Pell sold lands from his original land purchase from local Wiechquaeskecks.  There are also indications that the rival adjacent village of Eastchester shared the hosting of some proceedings of the Court of Sessions.  In addition, Justices of the Court were assigned to "Ridings" and rode on horseback throughout their assigned jurisdictions to hear small matters (see below).

In their multi-volume history of the "Courts and Lawyers of New York," Alden Chester and Edwin Melvin Williams wrote:

"Under the Dongan Assembly Act creating Westchester County, the village of Westchester became the county seat; or at least shared the sessions of the County Court with Eastchester.  The first Court of Sessions held in Westchester, as shown by court records, was on June 3, 1684.  John Pell was, it seems, appointed First Judge of Westchester County in that year, but the records do not show whether he sat at the June session of 1684.  He seems to have been recommissioned by James II in 1688 [sic; should be 1685], after the status of the latter had changed from the duke to the king.  [See registered copy of the Commission and transcription thereof below.]"

Source:  Chester, Alden & Williams, Edwin Melvin, Courts and Lawyers of New York:  A History, 1609-1925, Vol. I, p. 1298 (Clark, NJ:  The Lawbook Exchange, Ltd., 2005).

Soon after his arrival in New England in late 1670, John Pell was accepted as a respected member of the landed gentry of the southern parts of the Province of New York.  When he was appointed Justice of the Court of Sessions of Westchester County, the court's jurisdiction was divided into three "Ridings" with Justices "riding" about the area to hold court in various places within each "Riding."  The three Ridings at the time were the North, East, and West Ridings.  John Pell was a Justice in the North Riding. 

The court of sessions was held by all the justices of the peace within their respective riding three times a year, June, December and March in the earlier years. (In later years some were held in November rather than December.)  During a court session, in the absence of a member of the Provincial Council, the oldest justice presided. The jury was composed of overseers elected from the various towns within the Riding. The court of sessions possessed both civil and criminal jurisdiction. It had cognizance of all actions of debt, account, slander, trespass and actions on the case, where the sum involved was more than five pounds and not over twenty pounds. Court days likely were lively affairs that attracted visitors from throughout the Riding to participate in markets and for the "entertainment" offered by lively court sessions. 

The Court of Sessions of the County of Westchester was somewhat different than what we may think of a court in our separate judicial branch of government today.  Some of the issues it addressed and relief it granted had legislative aspects.

John Pell's long involvement with the Court of Sessions and the many judicial proceedings that were held in the Village of Westchester are commemorated in a massive mural painted in 1932 that is ten feet high and thirty-six feet wide.  It was painted by James Monroe Hewlett on a wall of The Bronx County Building located at 851 Grand Concourse, Bronx, NY, 10451.  The mural, which is shown below, depicts the first meeting of the Westchester County Court of Sessions in the Village of Westchester with Justice John Pell presiding.  Pell was painted from a portrait of him prepared during his life.  According to an article written by Bronx Historian Lloyd:

"The subject of the mural was chosen for two reasons.  First, the building in which it was displayed was a courthouse with several courtrooms.  Secondly, the structure was the Bronx County Building and the convening of the first county court on the soil of a county about to celebrate the twentieth year of its founding in 1914 seemed appropriate.  The central portion of the mural shows a trial in progress.  The litigants and the lawyers are around the table to the right.  They face Justice John Pell occupying the high seat with the bench in front of him.  The members of the jury sit in the seats in the background.  A small group of men, probably awaiting the next trial on the docket, confer in an alcove on the extreme left side of the mural.  On the extreme right, another group, probably including the man recording the trial, cluster around a table bearing documents.  On the wall beside them is a map showing the divisions of the area that is now The Bronx.  Hewlett's image of John Pell is a simplified version of a portrait of the man that has survived.  [See below.]  The courtroom, however, is far too large and spacious for the one in which trials were held in 1684.  In reality, construction on a building that would house this court did not begin until 1686.  The coat of arms of England is at the top center of the mural." 

Source:Ultan, Lloyd, The Bronx County Building's Historical Murals:  An Artistic Legacy, p. 7 (Bronx, NY:  The Bronx County Historical Society, 2018) (Written by Lloyd Ultan; Photos by Robert Benimoff, In Cooperation with The Bronx County Historical Society). 

James Monroe Hewlett's Mural Depicting John Pell of the Manor

of Pelham Sitting as a Justice of the Court of Sessions of Westchester

County During a Court Session.  Text at Top of the Mural Reads on left:

"IN 1684 THE COLONIAL GOVERNMENT ESTABLISHED A COUNTY COURT

IN THE TOWN OF WESTCHESTER OF WHICH COURT THE HON. JOHN PELL

WAS THE FIRST JUDGE." and on Right:  "THE TRIAL OF GABRIEL LEGGETT A

COLONIST WAS HELD IN THIS COURT BEFORE JUSTICE CALEB HEATHCOTE

BENJAMIN COLLIER BEING HIGH SHERIFF OF THE COUNTY."  NOTE:  This

Copyright-Protected Image is Embedded Here from Another Web Location.  Thus,

if it is Taken Down from that Location or its URL is Changed, this Embedded

Version of the Image No Longer Will Be Visible.  NOTE:  Click on Image to Enlarge.

I have written about John Pell's service on the Court of Sessions before.  See Mon., Mar. 14, 2016:  Three Days of Westchester County Sessions Court Run by John Pell of Pelham Manor in June of 1687.  Today's Historic Pelham Blog article addresses the recommissioning of John Pell as a Justice of the Court after King James II rose to the throne in England.

When John Pell was first appointed as Justice of the Court of Sessions, it appears that he was commissioned under authority of Charles II who was King of England, Scotland, and Ireland.  Charles II died on February 6, 1685 and was succeeded, beginning that day, by his brother, James II.  James II is known as James II and VII since he was King of England and Ireland as James II and King of Scotland as James VII.  He served as King from February 6, 1685 until he was deposed in the so-called Glorious Revolution of 1688.  He was the last Roman Catholic King of England, Scotland, and Ireland.  

Before rising to the throne, James II was designated "Duke of York" at birth. During the Anglo-Dutch Wars his brother, King Charles II, asserted England's claim to the New Netherland region in America by granting his brother, James (then Duke of York) a patent.  The new colony, of course, was named New York.  

The Duke of York succeeded to the throne upon his brother's death.  Thus, in 1685 New York Governor Thomas Dongan recommissioned John Pell and others as Justices of the Court of Sessions of the County of Westchester.  The commission named John Pell, John Palmer, William Richardson, Joseph Horton Sr., and Joseph Thealle as Justices and specified the scope of their powers as members of the Court of Sessions.  John Palmer was a member of the Provincial Council and, as such, also was a justice of the Court of Assize in 1684-85 and 1687-88.  He also was a judge of Admiralty in 1684.  William Richardson was a notable local citizen who operated a mill on the Bronx River.  

The recommissioning document was registered in the Westchester County Book of Deeds, Volume A-B, 1681-1698.  Images of the pertinent two pages are presented below, together with a transcription of the handwriting.

Portrait of John Pell, So-Called "Second Lord" of the Manor

of Pelham Who Was a Nephew and the Principal Legatee of

Thomas Pell, the Founder of the Manor of Pelham. NOTE: Click

on Image to Enlarge.

*          *          *          *          *

"JAMES THE SECOND, BY THE GRACE OF GOD KING OF ENGLAND, SCOTLAND, FFRANCE [sic] AND IRELAND DEFENDER OF THE FAITH, &c, SUPREAME LORD AND PROPRIETOR OF THE COLLONY AND PROVINCE OF NEW YORK &c., 

TO OUR WELL BELOVED, JOHN PELL, JOHN PALMER, WILLIAM RICHARDSON, JOSEPH HORTON, SENIOR, JOSEPH THEALLE ESQRES. (GREETING) KNOW YEE, that wee have assigned you and every one of you dureing oe Will and Pleasure joyntely and severally our Justices to keepe our peace in the County of Westchester and to keepe and cause to be kept all lawes and ordenances made for the good of the peace and for conservation of the same and for the quiett rule and government of our People in all and every the Articles thereof, in our said County according to the force forme and efect of the same, and to chastize & punnish all persons offending against the forme of these laws and ordenances or any of them in the County aforesaid as according to the forme of these lawes and ordenances shall befitt to be done and to cause to come before you or any of you all those persons who shall threat on any of our People in their persons or in burneing their houses to find sufficiant securety for the peace or for the good behaviour towards us and our People and if they shall refuse to find such securety then to cause them to be kept in safe prison untill they find such securety wee have also assigned you and any three of you, whereof any of you the said John Pell, John Palmer, William Richardson, shall be one our Justices to enquire by oate of good and lawfull men of the County aforesaid by whom the trute may be the better knowne of all and all mannor of petty larcenys trespasses and extortions and of all and singular other misdeeds & offenses of which Justices of the Peace may or ought lawfully to enquire by whomsoever & howsoever don or perpetrated which hereafter shall happen howsoever to be done or attempted in the County aforesaid and of all these who in the County aforesaid have laine in waite or hereafter shall presume to lye in waite to maime or kill our people, AND ALSOE of Inholders ***** [asterisks in orginal] AND of all and singular other persons who have offended or attempted or hereafter shall presume to offend or attempt in the abusses of weights or measures or in the saile of victually against the forme of the lawes or ordenances or any of them in that behalfe made for the Common good of this our Province and the People thereof, in the County aforesaid and alsoe of all Sherriffs Bayliffs Constables Goalers [i.e., Jailers] and other officers whatsoever who in the execution of their offices about the premises or any of them have unlawfully demeaned themselves or hereafter shall presume unlawfully to demeane themselves or have beene or hereafter shall be careless remise or neglegent in the County aforesaid and of all & singular Articles & circumstances and all other things whatsoever by whomesoever & howsoever done or perpetrated in the County aforesaid or which hereafter shall happen howsoever to be done or attempted in any wise & to heare & determine all & singular the petty larseneys trespasses extortions aforesaid and all & singular other the premisses according to law and to chastize & punish the said persons offending & every of them for there offences by corporall punishment, ffines, ransomes, amercements, forfeitures or otherwise as ought to be don according to the laws, & whereas by an acte of oe Generall Assembly you are impowered in yoe sessions to trye as well Civill causes as causes Crimenall.  Wee have likewise assigned you and any three of you whereof any of you the said John Pell, John Palmer, William Richardson, shall be one in yoe said Courts of Sessions to heare trye & determin all such said causes as shall be brought before you according as in the said acts is prescribed & appoynted and according to the lawes of the province provided always that if a case of diffecalty upon the determenation of any of the premisses shall happen to arrise before you or any three or moore of you; your nor any three or more of you doe proceed to give judgmt therein except it be in the pressence of one of our Judges of our Court of Oyer & Termenor and Generall Goale delivery in the County aforesaid.  AND wee comand by vertue of these presence the Sherriffe of the said County that at certaine days & places which you or any such three or moore of you as aforesaid shall cause to be made knowne unto him he cause to come before you or such three or more of you as aforesaid such & as many good & lawfull men of his Baliwick by whome the trute in the premisses may be the better knowne & enquired of.  IN WITNESS WHEREOF wee have caused the seale of oe said Province to be hereunto affixed this 20te day of Octobe. 1685 & in the first yeare of our Reigne.

TEST:  THO. DONGON.

Past the Offices, J. Spragg, Secr.
Compared with the origionall this being a true coppy from the same
Pr. me Joseph Lee, Registe."

Source:  County of Westchester New York Deedbook A 1681-1688, pp. 43-44 (via FamilySearch, New York Land Records, 1630-1975, Westchester, Deeds 1681-1698, Vol. A-B; free account registration required to access via this link).

First Page of Registered Copy of Governor Thomas Dongan's

Commission Appointing John Pell a Justice of the Court of Sessions

on October 20, 1685 (Old Style Julian Calendar).  Source:

County of Westchester New York Deedbook A 1681-1688, p. 43 (via

FamilySearch, New York Land Records, 1630-1975, Westchester,

Deeds 1681-1698, Vol. A-B; free account registration required to

access via this link).  NOTE:  Click on Image to Enlarge.

Second Page of Registered Copy of Governor Thomas Dongan's

Commission Appointing John Pell a Justice of the Court of Sessions

on October 20, 1685 (Old Style Julian Calendar).  Source:

County of Westchester New York Deedbook A 1681-1688, p. 44 (via

FamilySearch, New York Land Records, 1630-1975, Westchester,

Deeds 1681-1698, Vol. A-B; free account registration required to

access via this link).  NOTE:  Click on Image to Enlarge.

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An Imbroglio at Belden Point Embroiled Local Justices of the Peace in a Judicial Battle of the Wills in 1892

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During the early 1890s, William Belden of City Island in the Town of Pelham oversaw a summer resort and amusement park on his Belden Point property located at the southern tip of City Island. I have written about William Belden and his Pelham amusement park before.  See, e.g.:

Fri., Sep. 09, 2016:  An Illuminating Excursion to Belden Point in Pelham in 1892.

Mon., Sep. 12, 2016:  More on Pelham's Summer Resort and Amusement Park Known as Belden Point.

William Belden was a financier and real estate developer who clearly was a rather shady character.  Belden may be best known as one of three principal financiers (the others being Jay Gould and Jim Fisk) involved in a scheme in the late 1860s to inflate the price of gold.  When the scheme (and the price of gold) collapsed, the stock market panic of September 24, 1869 followed, wiping out the fortunes of many and leading to an ugly Congressional investigation. Belden was in and out of court for the next two decades and found himself involved in a host of financial and personal difficulties. 

In 1885 Belden scraped together the funds necessary and purchased "The Mansion" on the southern tip of City Island.  See Fri., Jul. 10, 2015:  The Mansion Built by Stephen Decatur Horton and His Wife on Belden Point, City Island, Town of Pelham.  "The Mansion" had been built in the mid-1870s by Stephen Decatur Horton and his wife, Caroline Lucilia (Skidmore) Horton. 

By the late 1880s, Belden's many misdeeds caught up with him. He was forced into bankruptcy. As he struggled to regain his financial footing, he converted The Mansion and its surrounding property into a "summer resort."  As period advertisements indicate, the main home (i.e., The Mansion) became a French restaurant.  Given the spectacular location of Belden Point, Belden soon was able to expand his restaurant and resort in significant ways. He built a six-lane bowling alley. He built a billiard table hall with a host of tables. He expanded into family entertainment with the construction of "Eugene Block's merry-go-round," Dr. Hanway's "exhilarating toboggan slide" (which was a fascinating early version of a roller coaster), and much more.

Early in the spring of 1892, William Belden struck a concessions deal with a young man named Daniel J. Whyman.  The terms of the deal, it seems, were somewhat vague.  According to news reports at the time, Whyman agreed to pay Belden $1,000 for the privilege of selling concessions including popcorn, confections, and soda water during the 1892 season.  Whyman made an initial payment to Belden of $300 and agreed to pay the remainder from proceeds of concession sales.  It seems that the schedule for paying the remaining $700 to Belden was left somewhat vague.

Whyman created and placed signs within the amusement park.  He built concession stands from which to sell popcorn, candy, and soda water.  He hired a number of "saleswomen" who worked in the stands.

The 1892 summer season reportedly began slowly at the Belden Point amusement park.  This likely was due to the increasing popularity of the much larger (and more amusement-rich) Starin's Glen Island amusement park located only a mile or so away just off the shores of New Rochelle.  Nevertheless, business was not as brisk as desired that summer.

For whatever reason, William Belden expected a $100 installment payment on the amount Whyman owed him by July 1, 1892.  Whyman not only did not make the payment, but also told Belden he did not have money for such a payment because business had been so slow.

On Sunday, July 10, Belden appeared at the concession stands to demand a $100 payment.  When Whyman failed to produce the money, "Belden commenced an attack on his stand and wares."  Belden tore down Whyman's signs and attacked his concession stands.  When Whyman confronted him, Belden approached a Town of Pelham Constable, William Munson, who had been detailed to patrol at the amusement park.  Belden demanded that Whyman be removed from the park.  The Constable obliged.  Indeed, according to one account:  "Poor Weyman, pop corn and all, was landed sound and dry on the outside of the roadway, frenzied with pain and grief over the loss of his wares."

Daniel Whyman promptly appeared before local City Island Justice of the Peace John P. Hawkins who was known as a "Friend of the Working Man."  Whyman pressed charges against Constable Munson and the Justice issued a warrant for Munson's arrest.  When William Belden learned of the move, he appeared before Justice Hawkins to press charges against Daniel Whyman and demanded that Justice Hawkins also issue a warrant for Whyman's arrest.  Justice Hawkins refused, infuriating Belden.

The trial of Constable William Munson was held the evening of Monday, July 11 at the local courthouse.  The proceedings were described as follows:

"Mr. Munson was defended by Counselor Dudley Horton, while Mr. Weyman [sic] was under the judge's protection.  The judge listened patiently to the eminent counselor on behalf of his client, but somehow he could not explain satisfactorily why Mr. Belden caused this young man to be dispossessed from his possessions without legal notice.  We must say that Judge Hawkins' action and the stand he took to uphold the rights of this poor man will always remain fresh in the minds of our law-abiding citizens.  Decision reserved."

Had the matter ended there, the dispute likely would have had little impact on Pelhamites.  Soon, however, the dispute evolved into a full-scale battle between local Justices of the Peace.  

William Belden dispatched Constable William Munson to New Rochelle where Munson approached New Rochelle Justice of the Peace DeVeau.  Munson pressed charges against Whyman and had Justice DeVeau issue a warrant for Whyman's arrest.  Justice DeVeau tapped New Rochelle Constable J. B. Prout to serve the warrant, arrest Whyman, and bring Whyman to New Rochelle to appear before DeVeau.

Prout found Whyman, served the warrant, and arrested the popcorn man.  As the pair departed for New Rochelle, Whyman slyly convinced the New Rochelle Constable to stop at the home of City Island Justice of the Peace John P. Hawkins to let him know that Whyman had been arrested.  When the captor and his captive arrived and explained the situation, Justice Hawkins demanded to see the arrest warrant, then refused to return it to the New Rochelle Constable.  He then directed the Constable to go find Constable William Munson and summon him to Justice Hawkins's home.  As soon as the New Rochelle Constable departed, Justice Hawkins released the prisoner.

When New Rochelle Justice of the Peace DeVeau learned what had happened, he was furious.  He had New Rochelle Constable J. B. Prout swear out charges against Pelham Justice of the Peace Hawkins, charging him with interference with the duty of an executive officer.  Justice DeVeau then issued a warrant for Hawkins's arrest.

Justice Hawkins was arrested and brought before a different New Rochelle Justice of the Peace, Justice Shannon.  Justice Shannon released the Pelham Justice on his own recognizance to appear for trial.  Meanwhile "another warrant for Whyman's arrest was placed in the hands of the constable."

Trial of Justice Hawkins was held at 7:30 p.m. on Monday, July 18, 1892.  The New Rochelle Courtroom was packed.  A local newspaper detailed what happened next:

"John J. Crennan appeared for the prosecution and Mr. Heath, of Pelham Manor, acted for the defendant.  

After preliminary motions by defendant's counsel to dismiss, which were denied, the examination began.  James H. Prout, a constable and special deputy sheriff, was first called.  He narrated the facts as to the securing of the warrant, the arrest of the prisoner, one D. J. Whyman, and the conversation at the house of Justice Hawkins', when the Justice took the warrant and said, 'I'll keep this,' and took possession of the prisoner.  He stated that Hawkins had said, I'll take care of you and Belden Point, too.'  The justice who issued the warrant, Mr. DeVeau, was next sworn, and he swore to the issuing of same, and giving it to Prout, and that it had not been returned to him nor had the prisoner been brought before him.

The People then rested their case and Daniel J. Whyman was sworn for the defense.  Whyman is the man who was under arrest, and it was the warrant for his arrest that Mr. Hawkins is charged with having taken.  During the examination of this witness there were several altercations between the opposite counsel, which gave Clerk Sexton some hard work.  Whyman's testimony was somewhat similar to Prout's in the main points.

John P. Hawkins, the defendant, was next put on the stand in his own behalf.  He stated among other things:  'I was given to understand that Prout had a warrant for Whyman's arrest.  I asked to see it.  I said, 'Prout, go and get Mr. Munson, and I'll hold Mr. Whyman here.'  Prout went, and did not come back for hours.'  He stated that he still held the warrant and that he knew he had not issued it.  He further testified that he had not offered to return the warrant, nor to deliver the prisoner.  He said in the course of cross-examination:  'I knew the warrant commanded Whyman to be brought before Justice DeVeau, or in case of his absence, before the nearest and most accessible magistrate in the county,' but he supposed Justice DeVeau was sick or unable to act.  Mrs. Hawkins was not sworn as having seen and heard what had taken place and the examination then closed.

After summing up by both counsel the Justice reserved decision until Tuesday morning, and on that day the defendant was held in $300 bail to await the action of the Grand Jury.  The bail was furnished and the defendant released."

After weeks of continuous news coverage of the dispute, suddenly all went silent.  No record has yet been found of the resolution of the dispute.  In addition to electronic search, review of several weeks' worth of newspapers reveals nothing further about the arrests or any final decisions by the Justices.  The matter seems to have quietly disappeared. . . . . . 

A Sketch of Belden Point in 1892.  Source:  BREATHED NEW LIFE,

The Evening World [NY, NY], Jul. 23, 1892, Evening Edition Extra, p. 1,

cols. 1-3 (Note:  Paid subscription required to access via this link).

NOTE: Click on Image to Enlarge.

The Mansion at Belden Point in an Undated Photograph.

NOTE:  Click on Image to Enlarge.

*          *          *          *          *

"City Island.
-----

Bass and weak fish are caught in large numbers.

Mr. Wm. Percy who was injured by being thrown from his horse is getting along nicely.

William Price has resigned from the police force appointed by our town board to act at Belden Point.  

Mr. Carl Wiegand, of Harlem, who was injured on the roadway by being thrown out of his wagon is entirely recovered.

Have you ever visited the Homestead on the south end of the Island and enjoyed the famous clam bake.  If not, why not do so?

We wish that City Island was possessed of a few more citizens like Justice of Peace John A. Hawkins, who is fearless and bold in the discharge of his duties.  Mr. Hawkins is a pride to our town and a terror to law breakers.

On Wednesday, July 20th, The Jolly Four Association, composed of young men of the annexed district, will enjoy a Rhode Island clam bake at the East Shore pavillion.

Mr. Mitchell Miller, formerly of the Manhanset House, at Shelter Island, is sojourning on the Island.  It is Mr. Miller's intention if he can acquire the desired property to build a first-class hotel here.

Edward Gallagher, better known as 'Swipes,' the newspaper boy, is the hero of the hour.  He is the recipient of a beautiful gold medal from the Humane Society of New York, as a reward for his bravery for rescuing several persons from drowning at Belden's Point on Saturday, July 1st.

We have a host of old relic hunters who watch our workmen take apart the spans on City Island bridge.  They are after the Tie-keys which were used to fasten the heavy oak timbers together by the old receiving ship North Carolina, condemned some thirty years ago.  The North Carolina was used by our government one hundred years ago as a School Ship.

Cornelius Douglass, keeper of Stepping Stone Light House, picked up the body of Frederick Bauer, age 22 years, of 114th street and Second avenue, on Sunday afternoon last.  The body was floating in the mid channel of the Sound between the Light House and City Island and he took it into the foot of Pilot Street.  The clothing consisted of light outing shirt, dark pantaloons and button gaiters.  Coroner Drews viewed the body and gave permission to his friends to remove the same to his late residence.  Inquest pending.  He was the young man whom the reward of $100 was offered for his recovery and was drowned on Sunday, July 2d, from a small yacht off Throggs Neck.

At a meeting of our Excise Board held on Monday, July 11th, at the City Court House, loud protests were made by the school trustees against granting license to George Meyers of Pelhamville, who is within 200 feet of the the public school.  Mr. Meyers is a new comer, and went to considerable expense in fixing up his place as a first class hotel, and to his sorrow he finds he cannot secure the necessary license.  We would advise Mr. Meyers to start a first-class grocery store, something that is needed in Pelhamville.

Belden Point was a scene of great trouble on Sunday afternoon, July 10th, which almost equalled, on a small scale, the riot now going on at Homestead, Penn.  It was a genuine case of Capital against Labor.  It appears that Mr. Weyman had secured the privilege early in the spring to erect stands for the sale of pop corn, soda water, confectionery, etc., for the consideration of $1,000, of which he paid down the sum of $300, with the understanding that he would pay the balance at his own convenience.  Business has not been what it ought to have been at Belden Point this season, and it kind of worked on Mr. B.'s financial nerve.  Last Sunday morning the day broke bright and fair with every prospect of a good day's business, and crowds were coming, when Mr. Belden, of the South End, stepped up to this poor pop corn man and demanded forthwith the sum of $100, which he claimed was due him since the 1st instant.  Mr. Weyman, of course, could not meet his demand.  Then Mr. Belden commenced an attack on his stand and wares.  He tore down his signs and ordered the pop corn man and his lady saleswomen off the grounds at once; but Pop Corn would not move an inch, demanded his rights, and gave, as Mr. Belden says, impudence to him.  Belden immediately summoned one of his Hawkshaws [i.e., private detectives] to remove Mr. Weyman, which he did in no gentle manner.  Poor Weyman, pop corn and all, was landed sound and dry on the outside of the roadway, frenzied with pain and grief over the loss of his wares.  Mr. Weyman sought out Justice John P. Hawkins (the friend of the workingman) and explained his case.  Justice Hawkins issued a warrant for the arrest of Belden's Hawkshaw, William Munson, and placed him under bonds to appear later on for trial.  The trial took place on Monday evening at the Court House.  Mr. Munson was defended by Counselor Dudley Horton, while Mr. Weyman was under the judge's protection.  The judge listened patiently to the eminent counselor on behalf of his client, but somehow he could not explain satisfactorily why Mr. Belden caused this young man to be dispossessed from his possessions without legal notice.  We must say that Judge Hawkins' action and the stand he took to uphold the rights of this poor man will always remain fresh in the minds of our law-abiding citizens.  Decision reserved."

Source:  City Island, The Daily Argus [Mount Vernon, NY], Jul. 14, 1892, Vol. 1, No. 89, p. 3, col. 2.  

"Notes from Westchester County. . . .

Constable Munson was appointed by the Town Board of Pelham as a special officer to do duty at Belden Point, City Island.  Monday night Mr. Weyant, who had charge of one of the departments at the Point, became, Mr. Belden alleges, 'abusive and disorderly,' and he ordered the man from the place.  Weyant refused to go.  Munson ejected Weyant, and the latter went to Justice Hawkins and alleged that the 'officer used violence' and got a warrant for Munson's arrest.  Mr. Belden went to Justice Hawkins and asked for a warrant for Weyant, charging him with 'disorderly conduct,' but the justice refused to give a warrant.  Munson was tried on Tuesday night, and Justice Hawkins reserved his decision in the matter.  Munson yesterday went to New Rochelle and procured a warrant for the arrest of Weyant.  Weyant asked Officer Pell to take him to Justice Hawkins, as he wanted the latter to go bail for him.  He did so.  Justice Hawkins demanded bail, which was furnished, and the Justice, after a few words of caution, discharged the prisoner.  For this act Justice Shannon of New Rochelle gave Munson a warrant for Justice Hawkins's arrest.  He was taken to New Rochelle this morning and paroled until to-morrow night for trial."

Source:  Notes from Westchester County, The Evening Post [NY, NY], Jul. 14, 1892, p. 6, cols. 1-2.

"POLICE COURT NEWS.
-----

Some time ago a child of E. J. Hynes, while playing on the sidewalk near Mrs. Luikert's store, threw a ball which accidentally struck one of the large panes of glass. Mrs. Luikert claims that Mr. Hynes is responsible for her damage, and has brought suit for damages against him.  Mr. Hynes denies liability as he claims the accident was not caused through any negligence on his part.  The case will be tried this morning at 10 o'clock, before Justice Shannon and a jury.

They are having quite a lively time on City Island at present.  On Sunday last Daniel W. Whyman, who runs a small stand on Belden Point, became abusive and engaged in a quarrel with Special Constable Wm. Munson at Belden Point, and at Mr. Belden's order, Whyman was put off the place.  Constable Munson came to New Rochelle and procured a warrant for his arrest for disorderly conduct.  The warrant was issued by Justice DeVeau and Constable J. B. Prout was sent to City Island to get Whyman.  He took Whyman into custody and started for New Rochelle.  Whyman asked permission to see Justice Hawkins, of City Island, before coming up, and he was taken to Justice Hawkins's house on City Island.  Hawkins asked to look at the warrant, and upon its being shown to him he said, 'I'll keep this,' and refused to give it back to the constable.  Mr. Prout then came to New Rochelle and swore out a warrant for the arrest of Justice Hawkins for interfering with an executive officer in the discharge of his duty.  Justice Hawkins was arrested and brought before Justice Shannon at New Rochelle, who allowed him to go on his own recognizance to appear for trial.  Meanwhile another warrant for Whyman's arrest was placed in the hands of the constable."

Source:  POLICE COURT NEWS, New Rochelle Pioneer, Jul. 16, 1892, Vol. XXXIII, No. 15, p. 3, col. 5.  

"POLICE COURT NEWS.
-----

On Monday night last Justice Shannon's Court was packed with people when the case of the People against John P. Hawkins was called for examination.  In our last issue we described the circumstances and the offense with which Justice Hawkins was charged -- that of rescuing a prisoner in the custody of an officer.  Mr. Hawkins is one of the Justices of the Peace in the town of Pelham, and for this reason a very great interest has been shown in the result of this proceeding, not only in City Island, but in New Rochelle, Mt. Vernon and Westchester as well.  The case had been adjourned until Monday evening last at 7.30 o'clock, and at that hour all parties were ready for the examination.  John J. Crennan appeared for the prosecution and Mr. Heath, of Pelham Manor, acted for the defendant.  

After preliminary motions by defendant's counsel to dismiss, which were denied, the examination began.  James H. Prout, a constable and special deputy sheriff, was first called.  He narrated the facts as to the securing of the warrant, the arrest of the prisoner, one D. J. Whyman, and the conversation at the house of Justice Hawkins', when the Justice took the warrant and said, 'I'll keep this,' and took possession of the prisoner.  He stated that Hawkins had said, I'll take care of you and Belden Point, too.'  The justice who issued the warrant, Mr. DeVeau, was next sworn, and he swore to the issuing of same, and giving it to Prout, and that it had not been returned to him nor had the prisoner been brought before him.

The People then rested their case and Daniel J. Whyman was sworn for the defense.  Whyman is the man who was under arrest, and it was the warrant for his arrest that Mr. Hawkins is charged with having taken.  During the examination of this witness there were several altercations between the opposite counsel, which gave Clerk Sexton some hard work.  Whyman's testimony was somewhat similar to Prout's in the main points.

John P. Hawkins, the defendant, was next put on the stand in his own behalf.  He stated among other things:  'I was given to understand that Prout had a warrant for Whyman's arrest.  I asked to see it.  I said, 'Prout, go and get Mr. Munson, and I'll hold Mr. Whyman here.'  Prout went, and did not come back for hours.'  He stated that he still held the warrant and that he knew he had not issued it.  He further testified that he had not offered to return the warrant, nor to deliver the prisoner.  He said in the course of cross-examination:  'I knew the warrant commanded Whyman to be brought before Justice DeVeau, or in case of his absence, before the nearest and most accessible magistrate in the county,' but he supposed Justice DeVeau was sick or unable to act.  Mrs. Hawkins was not sworn as having seen and heard what had taken place and the examination then closed.

After summing up by both counsel the Justice reserved decision until Tuesday morning, and on that day the defendant was held in $300 bail to await the action of the Grand Jury.  The bail was furnished and the defendant released."

Source:  POLICE COURT NEWS, New Rochelle Pioneer, Jul. 23, 1892, Vol. XXXIII, No. 16,  p. 3, col. 5.

"POLICE NEWS.
-----

They are having more trouble on City Island.  On Tuesday last Officer Prout and Mr. Belden came before Justice Shannon with two prisoners from City Island and Mr. Belden made a charge against them accusing them of having engaged in and been the leaders of an attempt to cause a riot on City Island, near Mr. Belden's place.  The prisoners were James Wren and Edward Daniels who were employed there.  They were locked up to await a hearing but in the meantime Mr. Belden declined to press the charge, and both prisoners were released and left town."

Source:  POLICE NEWS, New Rochelle Pioneer, Aug. 6, 1892, Vol. XXXIII, No. 18, p. 3, col. 3.

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Summaries of 1885 New York Court of Appeals Decision that Paved the Way for Pelham Bay Park

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The creation of Pelham Bay Park during the 1880s is one of the most significant events in the history of the little Town of Pelham.  Indeed, creation of the park has likely protected Pelham and other parts of today's lower Westchester County from annexation by the adjacent behemoth, New York City.  

During the last decades of the 19th century, however, many Pelhamites (and others) battled against creation of the park.  With legislative authorization, New York City was using eminent domain to acquire lands in Pelham (i.e., lands outside the New York City limits) to create a park for city residents.  Although some in Pelham opposed the concept, most who battled the city were simply those whose lands were being acquired.  Some joined the battle because they were angry over losing their homes or lands.  Others, however, joined the battle because they did not believe they were receiving a fair price for the taking of their properties.  

Regardless of the various motivations of those who joined the battle, the fact remains that many fought the move by New York City to create Pelham Bay Park.  One of the principal elements of the battle, of course, was founded on the Great American Pastime:  lawsuits.

After New York enacted into law in 1884 "An act laying out public places and parks in the twenty-third and twenty-fourth wards of the city of New York, and in the adjacent district of Westchester County, etc., Chap. 522, Laws of 1884, the Supreme Court (the trial court level in New York) entered an order finding that the statute did not violate the New York Constitution and appointing commissioners to appraise the lands that would be taken from Pelham landowners through eminent domain for creation of Pelham Bay Park so that fair payments would be made to the property owners.  Pelham property owners appealed the order and sought review by the New York Court of Appeals (the highest court in the State of New York).  

The appellants sought reversal of the order below and argued that the New York statute authorizing the taking of lands "in the adjacent district of Westchester County" (i.e., Pelham) violated the New York State Constitution for a number of reasons (see below).  On October 6, 1885, the New York Court of Appeals rejected all such claims by the appellants and affirmed the decision of the court below thereby paving the way for the eminent domain process, including takings, appraisals of, and payments for Pelham properties needed for creation of Pelham Bay Park.  See In re Application of the Mayor, Aldermen and Commonalty of the City of New York to Acquire Title to Certain Lands for Public Parks, 99 N. Y. 569, pp. 569-99 (N.Y. 1885).   


Local newspapers reported extensively on the decision.  Indeed, Mount Vernon's "The Chronicle" devoted much of the front pages of two of its weekly issues of the newspaper to the decision on October 30 and November 6, 1885.  Those reports are quoted in full at the end of today's Historic Pelham Blog article with each followed by a citation and link to its source.  The newspaper summaries of the Court of Appeals decision reveal much about the battles to block the development of Pelham Bay Park.  With resolution of these issues by the Court of Appeals, however, property owners were left to fight the appraisal process and to argue that they should be entitled to as much money as possible for their properties -- the battle that followed and lasted for years until all the necessary parcels had been assembled for the new park.

1905 Map of Pelham Bay Park.  Source: Office of the President of

the Borough of the Bronx Topographical Bureau, Topographical

Survey Sheets of the Borough of the Bronx Easterly of the Bronx

River, Sheet 29 "Map of Pelham Bay Park City of New York Forming

Sheet 29 of the Topographcial Atlas of the Territory East of the Bronx

River" (1905) (Lionel Pincus and Princess Firyal Map Division, The

New York Public Library).  NOTE:  Click Image to Enlarge.

*          *          *          *          *

"THE COURT OF APPEALS ON THE NEW PARKS.

The opinion of the Court of Appeals in the matter of the new parks for New York city was written by Justice Finch, and is a very able and exhaustive document.  It would, if printed in full, fill about seven columns of the Chronicle.  Much of it however deals with questions of interest mainly to the to the legal profession, and such parts we propose to summarize.

He begins by saying:

Numerous provisions of the Constitution are claimed to have been violated by the enactment of the law authorizing and requiring the acquisition and maintenance of new public parks by the City of New York.  The large interest involved and the importance of some of the questions raised, have subjected the act to a patient and critical examination both in the Court below and upon the argument at our bar; and seems to demand from us a full statement of the reasons upon which our determination is founded.

It is claimed that the title of the act violates that provision of the Constitution, which requires that a private or local bill shall embrace but one subject which shall be expressed in the title.  The title is 'An act laying out public places and parks and parkways in the 23rd and 24th wards, of the City of New York, and in the adjacent district in Westchester County, and authorizing the taking of lands for the same.'

Section 6 of the act authorizes the use of a part of the Van Cortlandt Park for a rifle range and parade ground; and Section 12 extends the jurisdiction of the Department of Public Parks over the new acquired territory.

It is claimed that these provisions of the act are not expressed in the title, and that the act embraces more than one subject.  

The Court of Appeals says:  

The criticism is quite too rigid and narrow.  It would lead us to a condemnation which few titles would escape until they became cumbersome and awkward digests of the details of their enactment.  What are here denominated new subjects are fairly and reasonably elements and details of the laying out of new parks, and the acquisition of lands therefor, and so embraced in the one general subject of the bill.  The most valuable test of such a title, and the one which we have usually employed, is the inquiry whether the title was so framed as to be deceptive or misleading, and consummated the evil at which the constitutional prohibition was denied (Matter of Lands in Flatbush, 60 N. Y., 398; Matter of Paul, 94 N. Y. 397).  Where one, reading a proposed bill with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law.  But where, as in the present case, no such evil lurks in the title, and the provisions criticised [sic] may be easily and reasonably grouped within the scope and range of the general subject expressed, we ought not to destroy the legislation assailed, upon some nice and rigid criticism of forms of expression.  How the parks should be used and governed is a natural detail of their laying out and acquisition, and not the introduction of a new and foreign subject.

Another objection to the act was that it makes no provision for just compensation of land owners.

The Court says:

While it is not necessary, in advance of the taking, to pay to the landowner his compensation, it is necessary that the act which invades his ownership shall provide for a certain and definite and adequate source and manner of payment (Sage vs. City of Brooklyn, 89 N. Y., 189).

It is further argued that the act violates the Constitution in that it commits the estimate and appraisal of the damages to two commissioners.

The Court says:

This objection is founded upon a misconstruction of the act by taking a phrase from its surroundings and reading it with literal severity.  Section two provided for the appointment by the Supreme Court of three disinterested persons as commissioners to estimate damages, who are to take the oath of office and then proceed with due diligence to make a just and equitable estimate.  Section eight then provides for action by a majority of the board, when only such a majority are acting or agreed.  It may be conceded that the provision might have been more accurately expressed, but about its meaning and proper construction there can be no just doubt.  The phrase relating to all the commissioners, 'if they had acted therein,' and that relating to such two 'as shall be acting in the premises,' indicate that the provision refers to a case where one of the three, having opportunity to act, declines to do so, or is unable to be present, or differs from his associates, and was not meant and cannot be held to give to two the right to exclude the voice or vote of the third.  If under this act two of the commissioners, without notice to the third and ignoring his right should assume to make an appraisal, we should easily hold it to have been unauthorized by the statute; for the provision of section two which requires the three commissioners to make the appraisal with due diligence and to ascertain the damages, must be read in connection with section eight, and it could not be said that the commissioners made the appraisal when one of them was excluded; but it could be and would be true, as in all cases of action by a majority, where the third had notice and opportunity to participate but omitted or was [illegible].  In case of death, resignation, disqualification or refusal to act the law provides for a substituted commissioner (Section 7), so that the province of section eight is narrowed to the case of a disagreement, or a temporary or incidental absence.  In these provisions we discover no purpose to evade or violate the fundamental law, and deem it our duty to adopt a natural construction in consonance with what beyond any doubt was the legislative intention.

Another objection to the act is that it is unconstitutional because no sufficient notice is given to the owners of the lands to be taken.

The court says:  The act does provide a notice and hearing.  It is true, it is by publication but this is sufficient.

Another contention is that the act undertakes to extend the jurisdiction of Department of Parks over the newly acquired territory, even that in Westchester County.  

By the terms of the New York charter that department has charge of the protection and maintenance of the city parks, and is authorized to appoint policemen for the preservation of peace and order, who, within the parks, are vested with the same power and authority as the police of the city.  For a breach of the peace or an offense committed in Pelham Bay Park, and within the County of Westchester, the arresting officer might be required to take his prisoner before a magistrate of the adjoining county.  This provision of the act, it is said, violates section two of article ten of the Constitution, which preserves to counties, cities, towns, and villages the right to elect their own local officers, and to have them appointed by some designated local authority.  If that were true, it would merely annul an unessential detail of the act; but we do not see how the section is infringed.  The park police do not become Westchester County officers.  No official of that county is legislated out of office, and successors appointed by State authority, as was the case, upon an insufficient pretext, in People vs. Albertson, 55 N. Y., 50; nor are the powers and duties of any officer in Westchester so curtailed or destroyed as practically to subvert his office and bestow it on another, as was the case of the Sheriff of Albany County in People vs. Keeler, 29, Hun, 175.

The most serious question is whether the purchase of land for a park outside the city limits is 'a city purpose' and hence whether a debt therefor is unconstitutional.

Upon this point we propose to give the opinion of the Court of Appeals in full in our next issue."

Source:  THE COURT OF APPEALS ON THE NEW PARKS, The Chronicle [Mount Vernon, NY], Oct. 30, 1885, Vol XVII, No. 841, p. 1, cols. 3-4.  

"THE DECISION OF THE COURT OF APPEALS AS TO THE PELHAM BAY PARK.

Last week we gave our readers a summary of the opinion of the Court of Appeals on all but one of the questions brought before it in relation to the new parks.  This week we give hereunder in full, so much of the opinion as relates especially to the Pelham Bay Park.

It appears to be conceded and has not been denied that the acquisition and maintenance of public parks, securing pure air and healthful rest and recreation to the people, is a 'city purpose,' when executed within its corporate limits; and the sole contention is that it ceases to be a 'city purpose' when, in any degree or to any extent it moves outside of these boundaries.  What is the change which transforms the inherent nature and character of a 'city purpose' when it passes the municipal lines, we are told only by a grouping of extreme consequences, foretold as possible results.  If the city may go three miles from its nearest boundary, and with the connecting ribbon of a 'parkway' take Pelham Bay and Hunter's Island, why, it is asked, may it not take the falls of Niagara or a mountain of the Adirondacks, or land in Dutchess County, and building a road thither, claim it to be a 'city purpose'?  The question is a fair one and demands a satisfactory answer.

But before discussing the subject on its merits, it is best to secure the guidance and instruction of such precedents as exist, for the question will be found, I think, to be scarcely an open one.  No one controverts that it was a proper city purpose for the metropolis to spend numerous millions outside of its corporate limits in the purchase, forty miles away, of water rights and land for dams and reservoirs to supply the citizens with water.  It is true that the purpose contemplated was to bring the pure water to the citizens, while here it contemplates leading the citizens to the pure air.  Granted that the necessities are not equal, and the modes of supply differ, and yet that test of a city purpose, which asks if the property bought and the money spent go outside of the corporate boundaries, must be abandoned.  It will not serve for a rule.  The question was fully argued and frankly decided in the Brooklyn Bridge case (People ex rel. Murphy vs. Kelly, 76 N. Y., 475).  That enterprise was first undertaken by a private corporation, the two cities being stockholders, New York to the amount of one million, and Brooklyn of two million of dollars.  During [illegible] construction, the Constitution was amended by what is now section eleven of article eight, and which, forbidding a debt for anything but a city purpose, also forbade the ownership of stock in a private corporation.  The Legislature met the difficulty by providing for a dissolution of the corporation, and making the work an improvement of the two cities to be completed at their joint expense; Brooklyn, however, to pay two-thirds of the same, and the whole expense not to exceed eight millions of dollars.  A refusal to issue the bonds and advance the necessary means, when it became apparent that the cost would overrun the statute limits, brought the case into the Courts.  It was plain that the money of each city was being expended beyond its own boundaries, and upon a structure which, as to each, stood in part outside of its corporate limits; and equally plain that the bridge was not an imperative necessity, but only a great and useful convenience.  It was contended in this Court that it did not constitute a city purpose; and the precise question was whether it did or not, by reason of each city's expenditure and construction beyond its own bounds.  We decided that question; and here repeat the language used, both because of its authority and because of the attack now made upon its doctrine.  Earl, J., writing the prevailing opinion, declared:  'Nor can it be said that the indebtedness authorized to be incurred by the cities for the construction of the bridge was not for a city purpose. * * *  It would not be a city purpose for the City of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson River generally between that city and Albany, although incidental benefits might flow to the city.  Such works have never been regarded as within the legitimate scope of municipal government.  On the contrary, it would be a city purpose to purchase a supply of water outside of the city and convey it into the city, and for such purposes a city debt could be created.  So lands for a park could be purchased outside of the city limits and yet conveniently near thereto.  *  *  *  It cannot, therefore, well be held, as claimed by the learned counsel for the appellants, that what is meant by a city purpose is some work or expenditure within the city limits.  There could be no good reason for such a limitation.

'It could be no worse for a city to incur a debt for a city purpose outside the city limits than for one within such limits, and there is just as much reason for allowing it to be incurred in the one as in the other.  *  *  *  It would have been a city purpose if either city had been authorized to build the whole of the bridge, and it is none the less so that both are to unite in building it.'  Such is the doctrine which this Court has declared.  We are now asked to repudiate it as hastily and carelessly uttered.  With how little of justice that can be said of the language we have quoted may be made apparent by the records of the case itself.  The question was involved in the controversy.  It was raised and discussed by counsel quite sure to omit no pertinent suggestion.  In the opinions just quoted Judges Rapallo, Andrews and Danworth concurred.  Chief Judge Church and Judges [illegible] Folger dissented.  The dissenting opinion was written by Judge Folger.  It bears the marks of the characteristic modesty with which he differed from his associates, and of his conscientious industry in searching for the truth; and yet there is no word in it of dissent from the doctrine we have quoted, but the whole opinion is put upon the force of the limitations as to cost.  It is safe, therefore, to infer that the Court were unanimous as to the doctrine under consideration, although the case was thoroughly sifted by a formidable dissent.  Beyond that, we shall hope in the end to vindicate the doctrine so earnestly assailed upon the present appeal, outside of authority and on its extrinsic merits.

The legislation out of which grew the Prospect Park of the City of Brooklyn came before this Court.  (Matter of Land in the Town of Flatbush, 60 N. Y., 398).  The original act constituted the park out of lands in the city, and adjoining lands in the Town of Flatbush, and lands in the Town of New Lots for the special use of a parade ground (Laws of 1859, Chap. 466); and afterwards additional land was taken in the Town of Flatbush (Laws of 1866, Chap. 853).  Authority to contract debt for the payment and make temporary loans was also given (Laws of 1868, Chap. 493).

The question raised in this Court was over the right to assess lands in Flatbush adjoining the park for benefits, and was held that the improvement was so entirely in the interest of the city that adjoining lands in the neighboring town could not be assessed for the cost.  There is a feature in the Brooklyn acts which to some extent distinguished them from the act before us.  The lands acquired were annexed to the City of Brooklyn, and its entire municipal jurisdiction was thrown over the newly acquired territory.  But the case after all was not one of a mere extension of the city's area.  It was not essential to such extension that any land should be purchased, and the real city purpose was the taking for a park and not with a view of enlarging the city boundaries.  The latter measure was but a governmental step deemed best for the control of the lands purchased for a park.  In the Brooklyn case the annexation consisted in throwing over the Flatbush lands the complete jurisdiction of the city.  In the New York case the annexation is incomplete and pro tanto since only the authority of the city Department of Parks is extended to the outlying lands.  But at least this instance suggests the inquiry whether there has not been still other legislation indicating what had long been deemed city or village purposes, and so putting construction upon that phrase as used in the Constitution.

The statutes relating to rural cemeteries furnish such indication.  In 1847 villages were authorized to purchase and hold lands for purposes of burial, but some of the language used indicated an intent to confine them within the corporate limit.  But in 1869, (Chap. 727), cities and villages were authorized to acquire such lands adjoining their existing cemeteries, and all other restrictive language was carefully omitted; and then in 1870 (Chap. 760), the permission was made general without even the restraint of adding to an existing cemetery, and authority was given to borrow money for the purpose.  Is it true that it is not a city or village purpose to go outside of the corporate lines to buy and adorn in the quiet of the country a place for the burial of the dead?  Or, must health and propriety by violated by interments within city bounds unless private corporations come to the rescue?  It seems not to have been so understood.  In 1847 (Chap. 141), the village of Norwich was authorized to receive and hold title to land not more than one mile from its boundaries, and to purchase additional adjoining lands.  In 1862 (Chap. 71), the village of Dunkirk was empowered to locate a cemetery within or without its corporate limits but within the town.  And in 1858 (Chap. 72), the then village of Elmira was authorized to buy fifty acres of land for burial purposes within or near its municipal boundary, and to borrow ten thousand dollars for payment of the cost.  For the preservation of the public health a city or village may certainly purchase land beyond its boundaries for a hospital or pest-house, and so remove the danger of infection.  Cities and villages planted upon navigable streams may have granted to them ferry rights, and own and control them.  We have just held that the City of Hudson has a a ferry right to Athens, and the village of Athens a ferry right to Hudson.  Are we to say that it is not a city purpose of the one nor a village purpose of the other to buy and own land for slips or landings, or ferry-houses on the opposite shore, because beyond their own boundaries and in another town or county?  It is true of all these cases that either wholly or partly the land purchased can only be used by going out of the city or village, and not by bringing anything in as in case of the Croton water.  The dead and the sick must be carried out, and friends and attendants must follow, but does that make a constitutional difference?  The truth is that neither in authority nor in the legislative practice, nor in the common sense of the question is there any basis for declaring that there can be no true and sound municipal purpose which reaches beyond the corporate lines; and we are sure that the enterprise under consideration does not fall under a constitutional ban, because it is in part to be executed outside of the city limits.  And yet that is not the end of the question, and the inquiry as to a park at Niagara, or in the Adirondacks remain unanswered.  Beyond question neither would be a city purpose, and when we have determined why, we shall have approached at near to what is the true test as the nature of the subject will permit.  Whiles, as was said in one of the cases cited, it is impossible to formulate a perfect definition of what is meant by a city purpose, yet two characteristics it must have.  The purpose must be primarily the benefit, use or convenience of the city as distinguished from that of the public outside of it, although they may be incidentally benefited, and the work be of such a character as to show plainly the predominance of that purpose.  And then the thing to be done must be within the ordinary range of municipal action.  Acquiring and maintaining parks is within that range.  Acquiring them so near to the city as to make them convenient and accessible, and likely to be overtaken and surrounded by the city's growth, satisfies the first condition, while a park in the Adirondacks or at Niagara would not satisfy it at all, but would clearly indicate and conclusively prove an underlying purpose different from the city's use and convenience, and of which that use and convenience was but a pretext and cover.  Where the enterprise is of such a character that it may be justly so described and breeds in the impartial mind a conviction that the use and benefit of the city is but a pretext disguising some foreign and ulterior end, we may easily deny to it the attributes of a city purpose.  But the case must be a clear one, and so clear as to justify a reversal of the legislative judgment manifested by the enactment.  No such state of facts exists here.  When the Brooklyn park was planned the first step taken by the Legislature was to authorize the appointment of a commission to select the site.  They were not confined to the corporate limits, but were to act, not merely in view of the present condition, but also in view of the future growth of the city.  That example was followed in authorizing the New York Commission.  It was directed to recommend parks within the city and 'the adjacent district of Westchester County.'  They were not left to stray at large.  Their authority kept them near enough to the city to subserve, in the judgment of the Legislature, the city's use and convenience.  They were also directed to act, having in view the 'present condition and future growth and wants of the city.'  That an ordinary city may be, and often should be, planned and executed with reference as well to future as present needs, cannot be denied.  The city may lay out a wide street when a narrower one would answer present wants, and extend it beyond habitations and immediate needs.  The city may erect a public building, having in view future necessities, and exceeding the demands of present use.  That is often true economy and wise municipal administration.  The adjoining district of Westchester County, in which a portion of the park was located, is a triangle shut in between the city and the river on the east and west, and an extension to the river of the city's north line.  That the current of city population will soon overflow this triangle, and the corporate boundaries embrace it, the commission judged, and the Legislature determined -- thoughtfully, with deliberation, after careful study and investigation upon facts not before us, and with the opportunity and the aid of personal examination.  It would require a very clear and very strong case to justify a court in pronouncing such a conclusion to be but a fraudulent cover for some ulterior design foreign to the city's welfare.  Such is not the case before us.  We must assume what we can see is at least possible and perhaps probable, that the lands over the borer are so near, so convenient of access, so likely to be overtaken and surrounded by the city's growth, so desirable for the health and recreation of the citizens, and so cheaply to be overtaken and surrounded by the city's growth, so desirable for the health and recreation of the citizens, and so cheaply to be got in comparison with the consequences of delay, as to indicate a primary and predominant city purpose in a matter itself within the ordinary range of municipal action.  

Much more might be added upon this interesting subject, but the reasonable limits of an opinion have long since, and reluctantly, been passed.

The order should be affirmed with costs.

'All concur, except Rapallo, J., not voting.'"

Source:  THE DECISION OF THE COURT OF APPEALS AS TO THE PELHAM BAY PARK, The Chronicle [Mount Vernon, NY], Nov. 6, 1885, Vol XVII, No. 842, p. 1, cols. 3-5.

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