The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1845-06-16

OF TOOK away those chaTcred rghts and tbeTeIOIe was
unconstitutional because II was not passed by two
third vote.
Mr. BRADY also referred to the county of Wayne case
where It was decided that the Legislature extend
contract the territorial jurisdiction Of Justices Of the
Peace, though cannot deprive them of their office and
also to the of the People Carey Cowan 6i2.
And it also contended that there nothing the
record OF the court to show that James Conner
tuaiIy Clerk Of the city and county OF New York.
Mr. CUTTING argued that the court would in look
ing at the peadings fled by tho people in this that
there was an allegation that one Andrew Warner has
held and executed the duties OF Clerk oil the Court OF
Common Pleas, and the Office of Clerk OF the County
Court without legal warrant and that he still holds
intrded into these Offices and then calls on him to show
by what right title he does Then this intruder
puts in plea saying he does not think the people ought
to trouble him. because he appointed 10 those offices
by three persons acting under the law OF April l8i3
This is the whole title that he puts in and il this fails
him, Judgment must go against him. The title he sets
up Is not an election by the people given in Sec 8,
Art A. of the Constitution; nor it appointment by
any court by virtue Of any commission; but mere.
" BY three gontIsmen;to wit: Uishaer ngraham and
lnglis This is all his plea sets up and il is title at
all under the constitution of the state If the functions
Of Clerk OF the County Court be different from those ofhe
Clerk of Common Pleas then there is title to that
part of il at pill and this is matter of decided law; and
annexed to that of the Clerk of the Court of Common
Pleas As to not showing that Mr. Conner the peoples
that the people here the crown in England,
never set forth their title They merely set forth
that franchise has been violated, call the intruder
to show right and title the burthen Of proof Of which is
thrown on him; and if he fails to make out clear, per-
feet whole title, judgment of be rendered
against him. (sce of the People Utica ms Co.,
Is Johnson s5s) This plaintiff in error Warner) has
title to the Office il oustcd he loses nothing that be-
longs to him. he would be deprived Of of mis- rights
and person a writ of error complain Of that
which does not hurt him.
Mr.. CUTTING communicative say that this plea (of
Warners bad and the Of demurrer thereto
specified in the 18th page Of the error book 1t is bad
because the said act Of the Legislature conflicts with the
ceive two-thrd vote because said Warner was not
elected by tho peoples and il the liberties &c. claimed
G a0 s SAID 81 mot he
Clerk OF the Court of Common Pleas BY any Court
Clerk of the County Court by that Court Nor does
appear that he has any commission from any one to hold
the office. The act Of the Legislature, April TO- l843 is
unconstitutional because it conflicts with s.. Art
of the Constitution which provides that Clerks of Coun-
ties Sheris and the Register Of the City and County of
New shall be chosen by the people every years
"s a os,
ridcd in the preceding section SHAH be appointed the
Courts Of which they respectively are clers KS, What
Clerks OF Counties Then unless the Clerk Of the City
and County of New York was Clerk of Court, the
cept the Clerk Of the City and County Of New York,
who is Clerk Of the Court of Common Pleas (Air.
Wood subsequently admitted that it did mean ths)-
The Convention that formed the Constitution distinctly
made the Clerk Of this County Clerk OF Court, and
Pleas Can then the Legislature lop the substance Of
tom the substancel
Mr. CUTTING, show that at the adoption Of the Con-
stuon in 1921 the clerk Of this county clerk of
the Common Pleas cited Kens City Charter %, 90.
81 10 h and eha ga So
for the origin of the Court of Common Pleas (Montgo
merle Sec 81 29) The Court of Common Pleas it will
be thus dates far back 1886, when it call
ed the Mayors Court, (Dongans Charter, 81 Sec
ton g. gives the origin Of this clerk whore it appears
the sessions and clerk Of the Court of Common Pleas
This clerk also subsequently, filled the offices and dis
recorder Of Deeds clerk of the Oyer and Terminer clerk
Of the Circuit Court and sngs, besides other miscela
duties presumed to be incidental to the others
At the time the Constitution went into operation in 1921
all his various duties had been taken from him by
different statutes except the duties of clerk of the city
and county and clerk of the Common Pleas At page
~ Is of Dongan's Charter, then, find the origin
Of the present Court of Common Pleas. And we bring
this court down. resting on statute lawacts Of the Lee
gslaurc-to the very time the Constitution went into
operation, and show what was the acknowledged law
then and thus settled and confirmed. Following
historically lat 90 and 10 ofMontgomeries Charter,
what the posces of these officers in the 27th
section r: u Of Mongomeries Charerwe have confr-
and Common Pleas that now is In the 10th section we
have provision with regard to the clerk Then, by
feTing to the acts of the Colonial Legislature, Van
Schaack's ed Of Laws, l69, Oct II, 1897 find all
these privileges Of these charters there confirmed
This is copied by Kent page %. All these charters,
Queen Annes, Montgomeries and ALL las relating to the
privileges of this oiccr) all confirmed ratified and
settled by the acts of the Colonial Legislature And by
the 5th section this conrmatory IS made public act
relating to the whole colony By the Old Constitution
Of Ill., all these charters SC. were again confirmed.
And by act of Assembly, $780, ( I29 26 there
State, and the is declared to be public law, and TO
be noticed by all courts all occasions whatever. II
will also be found that the Mayors Court referred TO in
these charters repeatedly recognised by acts Of the
Legislature. Act 5th Feb. 1877, chap TO- sec D. Jones
and varick, 6-is public recognition of this court
Jones and Varicks ed Laws 1874 II is recognised as
Of the existing Courts of Record. Session Laws IL
Feb 1906 chap IL, the Legislature adverting to this
Mayors Court, recognises it, and makes slight al
teraons therein kents ed Of Laws 1910, the history
Of the Mayors Court again gone into and very clear
and mastery account of it given Under the Constu-
q ark WI nv he
and councils he clerk of the Court Of Oyer and Ter
miner, and recording officer to record deeds clerk of
And the very first efficient specific powers duties
signed to him. the duties of the Mayors Court called
he being at the time the common clerk Of the
City and County Of New York. BY the act Of
March H. isos g chapter 80 800 section ,as
all duties Of the Clerk Of the Oyer and Tcraner and the
Sessions thereafter to be performed by special
Clerk to be appointed by the Governor and Council By
the of April 1918, Rev. Laws p 1913, II, the
Clerkshp OF the Court of Circuit and sittings ia
ken from him and in 2Rev Laws 1918, 4oa $50,
Of NJ " to record deeds and mortgages who to be
appointed by the Governor and Council thus deprivng
him OF the duties OF RecordingiO Officer Thus we find
this Clerk, originally appointed, and how find
this Clerk OF the city and county recognized
Constitution he Clerk Of Court beside that Of the
Common Pleas) by various public Legislative Acts and
cd and modsed to wit by Acts Of FEB s. ISL c. 10
April s. 1887 ~; Jan. 3, 1897 Il Feb IL, 1906 H.
And all distinctly and directly down to 1926 when
he recognized by public act as clerk of the city
and county of New.York and clerk Of the Court Of
Common Pleas. And the perfect history of which we
find in kent's City Charter, p. l6l, l65, 1865.
The Clerk of the City and county OF New-York then,
ist Clerk Of the Common Pleas called the Mayors
Court.
ID Clerk Of the Oyer and Teminer and the Sessions.
Sd. Clerk Of Circuit Court and sittings,
4th. Recorder Of Deeds and Mortgages.
And he possessed all these powers as Clerk OF the
County and his first specific duties those of Clerk
of the Common Pleas. His main duties the Clerk
ships of these Courts and the others incidental
thereto And clearly show that all these duties
distinctly recognized his by the Legislature The
act of March H. 1903, c. 49, p 26S sec L. OF the Laws
shows clearly what officer they had in view when they
were egislatng; the clerk of the Common Pleas who
the clerk Of the county. After the statutes left
him with only the Pleas and County clerkships the
clerkship Of the Common Pleas was distinctly recog
nzed belonging to the clerk Of the county, for in the
4ih Laws p. lla find an Act rnng the seal
Count passed April 10 1915 by this act the legislature