The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-18
TIE STREET COMMISSION YEAS rRoUBL .s.
Judge Peabody Decides that He VIII Voc Ks-
sue the Warrants for the Arrest OF D.vlhn.
AnPRHKR COuRr.
Before lion. Judge Peabody.

Judge PIABopY-Proceedings having been nsti.u.ea
Devu to deliver 10 Mr. Concver The books and pspsrs per
tanning tho Office Of Street Commissioner or The city
Of New York. tho ground that The applicant was sno
ccmor TO the Office to which they appeTta.n and 6e
parties having been heard from day 70 day until he
sh day of July. 1851, and my deciion having been
titled to the relief ssked-that it, to the warrants Pro
vided for in that sectioDone has tho respondent DO
committed % the j.l OF The county until no Should
for said property and seine II, that might DO de-
heerod the applicant therein provided, uDiess NE
respondent should deliver them an order 70 that s6scs
accordingly made, reduced TO writing, signed
by on ID 10Th day of said July. That order i
medately served the respondent and delivery Of tho
papers In compliance with Il demanded, which was re-
ftsed This refsal followed by immediate Gppicn
ton for the war ants couem by the act 70 which tv
my decson embodied In the order had determined to
entitled Pending this Application, and while decus
sion respecting the effect OF Injunction then In force
strsnng the applicant nom taking into his possessioa tho
books and papers In progress writ Of cerorsy nom
the Supreme Court served on me Commanding no 20
certify that court my proceedings In the pvemses mo
Injunction has since been Dissolved am now asked
TO issue nowitbs the certiorar ne
fact thai this writ from s operation suspends the power OF
he OIL ,er whom 10 addressed rs not denied by he ap
pNcaAt, but the contrary Is admitted o general
no position but that such Is not tho effect ia this parcuiss
cAes insisted On several some OF which Soon
u aranae Themselves under tho following hes md
winch will proceed 10 CONSIDER
l. is said that this proceeding, 10 ns n'.nrs seiug
suumary intended TO confer present
rot to determine the ultimate rights of tho parties Is
not intended TO be subject 70 the operation a this writ
And there is much Of GOD sense IN the suggestion ssAs
In this manner. II docs not determine Tho ultimate rights
OF the PARTIES but leaves them 70 be determined 10 more
and formal proceeding They depend on TIE rsh 70
the Office and for ascertain ing that ample provision
made before. The ancient prerogative writ Of
raRto gave contrasting claim mode Of deter mirng
controversies respecting office conclusive 10 nature
all the parties Interested In that writ IN ~ DAY,
AZ since in the action Of the same name me sovereign
was the nominal and real plaintiff, while The PEI
asserting his rights to the office, " here were
such claimant was made a party Incidentally undss
To- e snA L. 4le~tx
plaintiff 80 h,r the assertion and protection Of hs
own rights s concerned, and the defendant, Who
,scr Gyi'f he held hi. one unable 10 ,ssS suf
6cient In law, and found O. titled 70 !.
IA obedience to the rights Of both me pn.nan A.a
The State as thus freed from the wrong OF an IN
lawful exercise of ito franchise BY an nsnSsr,
and vacancy eade into which the qsAssi psinIdcr
rolaor inducted, If his title approved; ard II
not the Office remained vacant and ready fer sne oc
and qualified 70 oil e. The rsh, to the Office beng uua
determined the right 10 the books and papers apTrAn
ing to followed a. nscessary and Inevitable ee~e
rights Of the parties aacer,Aned and declared, ara
afterwards BY adequate process enforced THIS proceeding
however, not thought sufficiently speedy 70 acs~eY ~
purposes accordingly supply Immediate ard -ygeni
ntceses The statute under which an acting wss eAses
ed, by which, IN . brief and summary manner, on de-
cson Of the question Of successIon in fact, merely No
incumbent should b. put into possession Of the books and
papers for the time being Thus until me ie eoa1 Do
ton the person apparently In the and OF
the franchise, with color OF title, should be placed
possession of tho books and papers Incident 70 ~ 7so
mode of deciding between two coutcstins slkim-
ants, not much which should occnpy unsl Tho alo
coSd be s , Ss ,S me ss 81 e
forming the duties OF the place until the ons so,oAiy
entitled should 30 judicaiiy Ncertaned here vcud,
this question, In most cases, the magistrate before
whom 10 should originate, and be board IN the trs, N
stance and that wss, doubtless, Tho intention Of hs
Legislature In all cases ordinarily srsng, ihsa a
vacuum, said TO be ebhorrent In patare, shoeid DOS
%sn The hoe sae,on Of e 1ole peeu OF
ooks &C. necessary to the performance OF lie duties
= Office Until the title can be determined, soaid
seem to be very suitable one TO be determined very
speedily, and this act seems 20 conten plate thas
{ shail be- and such e tho course In practice HOt
hat no error however palpAble, injustice hes
ever gras should be corrected by revbory .risups
In any care. does not necessary, 70 hsvs been
she intent q The Lss1 s Al The sH ~ s.o., %
formal ,Jn,dIns.. % Formal aaI. 10 ierm rae, z.
deed oil formaltes dispensed with for the cake
Of speed in arriving al the result But one srge mode
OF reviewing and correcting "a len, and a, By ad
was styled In the Argument THIS wr even, no,
ter or strict right but IN always IN tho digc' elton on No
court and only 70 be ALLOW cd IN s.,ss Of us knd wsese
further, that TO review In this manner VII, 90 tho
whole, be likely 10 conducs 10 subsiantisi 90
ilce between tho parties and further, hss . win
DO no harm to the public. Til, 10 the 9, and where
appears TIA, usce has probably been done, and ma.
the error can be cerora vhosi bar dshp
70 tho parry against whom the writ Is ssked or detr
10 the public should be Granted and In lesse cases
only should i be granted say the ss,so . .
whore, AMER solemn nguneut and grave 5sHbcrs
ton the writ has been refused and others which, srer
ju6scs on the ground that general usuoe and pubic
interest did not call for H. perhaps seemed oprosed
perssor, Of Ish.py eeUp,y Is vc.a ias nd pams
fous other arebcre cited 70 The same end trrougr
out The opinion in tina, case the learned Judec bror.on)
treats Il . wit only 10 DO allowed on SPECIAL osase
shown and when IN tho cscreon OF the court Sppear
ths, such Substantial justice between the parties rsqnres
ton TO aussh VIA slrcsdv granted and the oczr; a.
lowed the motion entirely on the ground ths., on We
whole ought 10, 70 asye been e,anes se gsss T.
had sustained wrong or not He expressly excludes al
inquiry into that, and virtually, for the purpose Of
tanned wrOps. lie sys-" wos'her the rei.isr
has in truth sustained an injury, 1 Do oos
psiD, out a remedy" of tbs wrl, he says ! soc. not
ssue Lbno jufltig but only on srp cst1n 70 mo
oocrt AMI on special cause shO.p" rom .hs' l
certoran Is pretty web hegci about with sfegussds.
frst, that Il ,bould appeal Iroeses una, "rocg ns
operate oppre--iyely, an that both .bese sbsab
be ietormnei By mo Court before the vr, should es
sorsd. 10 rot appear that both tho r.qustss
Occur in the Gaze. pb wend., los his sosns 70 me
20 .nswer the argument that me writ sbood sc 40
NV 70 proceeding, re ,sis. becsuse OF Nc danger MAJ
4 would deferi the end designed BY the processing
lsen s,sn,, lion seems 10 be r,o,, sss 49,
seems, sncr ke careful examination, that no harm
ss done b. allowing s the WI, 70 a.e Y ,csrse-
10 DO, but both Of which, the Court granting, X n
bound 10 decide In isvor " the applicant before Al
lows ~ the power 10 allow the writ would seers nee
only not inconsistent wsh hi, remedy, na there vcuh
seem 70 be good ground toobject 70 INC Ice pria-
ciple or Ia policy The case Of Lyade 70 y, 20 Wend
&C. only decides that cororar issurf 0NJwice % re-
view proceeding under The "act 70 amend Vie oct
disnesss for other purposes passed april ~, 1926
shsuld be qashed Ia IA from deciding that while the
certlorari IN force The officer 70 whom issued
might disregard t. In that case u was ssued premA
iurely, and being before the uial, the Court sssms
10 say the rBcer did disregard u, 80 Ear az N dash
The trial b. bc sure, but action taken 70 determine
the effect OF bis ats upon himself or third pe~sons and
therefore pohng decided on that subject and he
refused what am asked 70 do,o issue his varrantansr
the cerorar quashed. hsa that 20 suhcyi
" for The act am asked 10 perform, and indeed seems
10 be assumed throughout the oonion that the writ 90
operate suspend the powers a the ocer aer be aad
made hs dec sion, which esacy the condition ofs cass
IA said that the order made by the Court tn day snsr
he cerors sss .sed and served 10 the effect that sAd
writ should be deemed n operate sAy Of p~ore>d