58 REPORT OF THE 



SOME LEGAL PROCEEDINGS. 



While the purchasing was proceeding under authority of the 

 Supreme Court, as given above, an injunction was obtained from 

 the City Court of Brooklyn by P. H. Flynn, upon his allegation 

 that the prices being paid were excessive. This suit was benefi- 

 cial instead of harmful, as it demonstrated to the public the 

 honesty of the proceedings. The case was heard before Justice 

 Nathaniel H. Clement, of the City Court, who, on the 5th of Oc- 

 tober, 1895, decided as follows : " The affidavits submitted to us 

 seem to show conclusively that the defendant has not paid and 

 does not intend to pay for the lands included in the Richmond 

 Hill Park any more than a fair price. On the facts the plaintiff 

 has failed to make out a case. I do not feel called upon to de- 

 cide the constitutional questions raised by the learned counsel 

 for the plaintiff, for the following reasons : First, the County of 

 Kings is not made a party to the action. No complete judgment 

 can be rendered unless the summons and complaint are amended 

 and the County brought in. (Osterhudt vs. Supervisors of Ulster 

 County, 98 N. Y., 239 ; Hurlburt vs. Banks, 1 Abbot's B. C, 

 157). Second, the plaintiff seeks solely to enjoin the purchase of 

 the Richmond Hill Park on the ground that the defendant is act- 

 ing under a law which is unconstitutional. It appears that the de- 

 fendant is, under the same law, now purchasing the land for eight 

 or nine other parks in this city. If he is acting without authority 

 in the purchase of the land at Richmond Hill, he is equally with- 

 out authority in the purchase of the other parks. Third, the 

 granting or refusing of a preliminary injunction is to a certain 

 extent discretionary. The plaintiff was represented by counsel 

 in the Supreme Court on the confirmation of the report of the 

 defendant, which located the new parks. The defendant has pur- 

 chased or has options on a large part of the park in question. 

 The plaintiff has stood by and allowed the defendant to proceed 

 without raising any question as to the legality of his acts. While 

 the plaintiff may not have lost his rights to raise the constitu- 

 tional questions on the trial of the action, it seems to me that the 

 granting of an injunction would inflict more harm on the public 

 than its refusal. The motion to continue the injunction denied." 



