THE CITY RECORD. ' S Eptember 17

T he C ity Record. OFFICIAL JOURNAL. N u m b e r 380. VOL. II. • NEW YORK. THURSDAY, SEPTEMBER 17, 1874 opinion covers all the points which, up to that the duty of the Law Department to furnish every in their official records the strongest testimony. period, had been raised in your office against the department and officer such advice and legal as The highest officers of the navy of the United claim in question. sistance, as counsel or attorney, in or out of court, States in official reports add to the record. By means of it ladders can be projected and main Months have elapsed. The claim has remained as may be required by such officer or department, tained in places utterly inaccessible without it. unpaid. A suit to recover the amount has been and for that purpose he may assign an attorney to The documents of our own Fire Department show instituted against the city. Upon your official re any department that he shall deem to need the that at a comparatively recent fire in Centre street, sponsibility, as the head of the Department of same. It is hence the duty of the Counsel to New York, six lives which were sacrificed could Finance, you declare, that in your judgment pay the Corporation to furnish such advice and legal ment should be withheld ; and this being your assistance, as counsel or attorney, in or out of have been saved by the use of i t ; and at other conviction, no one has the right to question the court, as may be required by any other officer or fires the ravages of the flames could have been stayed, and the rolls of death shortened, if the exercise by you of the power to decline payment, department. If this language be construed to leaving the claimant to resort to the courts. In mean that any officer or department of the city city had possessed the invention. In obedience to the justifiable and meritorious the discharge of your duty, predicated upon the may not only require the advice and legal assist conviction which you avowed, you transmitted a ance of the Counsel to the Corporation, but may efforts of the Comptroller to defend the City summons and complaint to this office, and invoked also exercise over him unquestioned authority, Treasury from any hazard of depredation, I em the power of the Law Department to defend the then this officer is placed in the impossible posi ployed, long after my opinion in favor of the claim was rendered, an eminent lawyer to re-examine LAW DEPARTMENT. city from this demand. tion that the Department of Docks, for instance, I have reconsidered the points of the opinion may compel him to appear in court in a pending the patent and every pertinent matter relating to it in order to see whether the city was really gain referred to. I have also given careful considera case upon the side which that department may ing the right to use a useful apparatus, and [T h is Opinion appeared yesterday, tion to every suggestion which letters from me to happen to espouse, and at the same time the De partment of Police, for instance, might require whether there was any danger of a suit by other without an opportunity for the writer to your Department have been able to obtain as to the points of defense which in your judgment can him to appear in court in the same case upon a persons for an infraction of any similiar patents. read a proof. It is printed to-day with be raised and maintained against the justice and precisely opposite side espoused by the depart The gentleman to whom I refer possessed intimate acquaintance with the officers of the Patent Office his corrections and additions. ] legality of the claim. ment last mentioned. The mere statement of this My sober conviction is that, as a matter of law, inevitable result of the theory that the Counsel to at Washington and with the bar of that city ob No officer or department of the New York City Govern the city cannot successfully resist the su it; and the Corporation must be the mere instrument of tained during the exercise by him for eight years ment, with the qualified exception of the Board of that, as a matter of justice and policy, the attempt any department that chooses to command him, is of the office of Solicitor of the Treasury, conferred Health, can have or employ any attorney or counsel. upon him by President Lincoln at the recommen ought not to be made. sufficient to refute it. No honorable member of It is the duty of the Law Department to furnish to every dation of Secretary Chase. He made personal The question then arises, whether, in spite of the bar will permit any client to force him into the department and officer such advice and legal assistance examinations of records and personal inquiries of as counsel or attorney, in or out of court, as may be re my convictions, I am bound by law or by a sense advocacy of a cause against his judgment and his patent lawyers both in Washington and this city. quired by such officer or department, and he may assign of official propriety to defend the case when in my conscience ; and if the Charter requires this of the His written report, as I thought, left no doubt as an attorney to any department that he shall deem to own opinion the defence is both wrong and use Counsel to the Corporation no upright lawyer to this claim. The claimant herself is a lady of need the same. less, certain to impose upon the city an expensive would hold the position for an hour. He is un the very highest character. Letters from the most The law clothes the Counsel to the Corporation with a litigation, and place it before the courts and the doubtedly to give his best advice, his best legal sound discretion as to whether a particular claim or de eminent members of the iudiciary at Washington country in an attitude utterly indefensible. assistance, his best judgment, and his best services fence insisted upon by any department or officer of the and elsewhere, certify to her social standing and I have in numerous instances acted upon the to every department or officer when required ; but city government shall be carried to the courts for adju worth. There is no doubt that the purchase of dication. supposition that the law imposes upon this De he would do neither of these things if he obeyed a these rights for the city by the Fire Department partment a sound discretion as to whether 01 not behest contrary to his own opinion of law and his This discretion is not to be exercised capriciously, nor was effected at a most reasonable rate, with the should the wishes of any officer or department be care the Corporation shall be involved in litigations. own sense of right. distinct understanding that payment would be lessly or perversely disregarded. The subject, however, is of sufficient importance No department or officer is the client of the prompt, and that the adoption of the invention in A mere impression or even a conviction of the head of the to receive a careful re-examination, and this I have Counsel to the Corporation, except in a represent New York would favorably affect negotiations in Law Department that the judgment of another officer given to it. ative capacity. His client is the city itself. such other cities and places as had not already or department upon a question of law may be erroneous, The City Charter, like all which have preceded I cannot see what answer can be made to is not of itself sufficient to justify a refusal to test such it, divides the responsibilities of the municipal this view of the official responsibility of the acquired the right. question in the courts. Upon the Department of Finance, however, government among various departments, giving head of the Law Department. Great responsi But where the Counsel to the Corporation, after thorough the responsibility of delayed payment ought not distinctive powers to each. It is made the duty bility is manifestly thrown upon him by the law ; examination and careful deliberation, determines that a to be thrown in any spirit of censure, for there is litigation requested by another officer or department is of the Department of Finance to keep a debtor but his accountability is of equal magnitude. It no doubt that since my opinion was given, a gen utterly unjustifiable, and must prove unquestionably use and creditor account with every person having would not do for him to decline to defend a case tleman of eminence in the law of patents, has less, it is his duty to exercise the discretion imposed up dealings with the city, and it is given control of upon mere caprice, nor, in my judgment, would on him by law, and decline to involve the city or its expressed to certain officers in the Department the fiscal concerns of the Corporation. To the it be right for him to make such refusal merely officers in the labor and expense of a contest in the doubts which justified further examination and Law Department it confides the charge and con because the inclination and impression of his own courts. deliberation. Under these circumstances, I felt it duct of all the law business of the Corporation and mind might be different from that of the head of No department or officer is the client of the Counsel to the my duty, notwithstanding my own opinion, to so its departments, and of all law business in which another department, by whom he may be re Corporation.

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