New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-15
La " INTELLIGENCE.
THE STREET COMMISSIONERSHIP.
THE ARGUMENTS CONCLUDED
ANOTHER INJUNCTION.
THE MAYOR AND COMMON COUNCIL RE-
STRAINED FROM TAKING ANY ACTION
IN THE MATTER.

THE MAYOR AND COMMON COUNCIL RE
STRAINED FROM TAKING ANY ACTION
IN THE MATTER.
At III o'clock yesterday Judge Peabody of the Su-
preme Court took his seat in special term to hear the
argument Mr. Field in the matter of the apple ition
of Daniel ID. Conover to compel Charles Devliu to
deliver up the books papers, &C., of the Street Com
mist toner's Office.
Mr. Field proceeded with his argument in behalf Of
the applicant. Subjoined are his legal points:
Fira 1t may be conceded that the effect Of the
common law certDrdrt, when issued in proper
and at a proper time, is to remove the record from
the Inferior arsd ctOn and by consequence, that
jurisdiction cannot be continued without the record OF
what sas already been done, to suspend all further
proceedings there. The original purpose OF the writ
10 get the into the Superior Court that IL
might be there proceeded with. tBacons Abr. Ger
tioTar.
Second: The power TO issue this writ has been quail
flied or taken away in many cases, sometimes by OK.
press words in of habeas corpus, before ina
determination = X. s., 5T3 sec. 69), and OF proceed
ing to remove defaung tenants z k ST. 5l6, Sec Az,
and sometimes by implication, as in case OF the act OF
1890 respecting distresses, &c. laws of 1922 chap.
1874; 20 johns, 80 Lyme against Noble
Third: Whenever a statute has authorized a sum-
mary proceeding and the effect Of the removal of the
record would be TO annu the proceeding altogether,
the incongruy between the statute and the existence
Of the power to destroy its effect amounts to repeal
or qualification Of the power 10 take away the record,
or, in other words, to award certi0rdri.
Fourth II it be said that this inconsistency may be
avoided by the refusal OF the court to issue the WRIT
except in proper aud at proper tIne the an.
Is obvious, that the execution Of a statute does
depend upon the discretion of judges that what
inconsistent with law the courts have no pOOer to
perform, and that statute TO allow proceeding I'M
der statute which the Legislature intended should
be summary and uninterrupted; TO be, nevertheless.
suspended by the mistaken order of another judge, till
the mistake can be corrected would be to introduce
confusion into our system, and virtually to thwart the
legislative will.
In the case Of Lyme agt. Noble the certiorari was
issued and servednO statute had expressly forbidden
1.-THE magistrate, nevertheless, disregarded it, and
proceeded, aud the Supreme Court approved his
duct In that case, therefore, the writ had no Ope
IatOn--the record not removed by tit was,
in fact illegally issued and justly treated a
nullity
ritz In the present case, if the record be once
taken away from the Judge and carried 10 the Su.
preme Court, no future proceedings ever be had
upon it, not before the Judge, because he has nothing
before him which to act; nor before the Court,
BECAUSE though has the record has not the power
to proceed upon it. A prOcedeHd0 can never issue
after return made to the certtorart dds Practice,
349 it follows therefore, that the power to issue
the certiorari to the Judge, long as anything re-
mains to be done by him, is taken away by mpli-
cation.
Sirth: Much remains yet to be done by the Judge
in this summary proceeding. The warrants are yet 10
be signed and the return of the second warrants
further inquiry is to be had and determination
made as to the books, papers, &C., to be delivered to
Mr.. Conover.
SescHth: such would be the aspect or the case, II
the Court in allowing the writ, had not made
ditional allowance what is the thing, since
modified the allowance so as to make it conditional.
The right of the Supreme Court originally to grant
conditional allowance is established; far as this
Cont at Special Term, is concerned, and tott0rt
far as Judge out of Court is concerned. Order Of
18th of July, Is Wend 665-61J
Eighth Independent of this decision of the Special
Term the power to make conditional allowance ex'
lists and the night to make 1t at any time Is clear.
Whenever wnt is issued, the authority of the Court
in IT attaches and 1t may be altered and entirely set
aside.
Judge Peabody announced that he would render his
decision on Friday next.
About 5 O'Clock yesterday afternoon Merwin Il.
Brewer, esq attorney of Daniel ID. Conover, called III
the Office of the Clerk of the Board Of Councilhen
and there served upon each of the members assem-
bled a copy Of the following injunction issued by
Judge Peabody;
Daniel ConOver sst tn. Mayor Adermen and
1t appearing satisfactorily to me by the affidavit of
Daniel ID. Conover, the plaintiff, that suhcieht
grounds for an order Of injunction exist, do hereby
order that the defendants, the Mayor Aldermen ana
Commopalty Of the City of York and tue Com
mon Council of the said city, and each Board thereof,
ana their agents and servants refrain from concurng
in, or agreeing TO, or passing, or carrying ln'o
effect the resolution of the Board OF Aldermen uien-
toned in the complaint and OF which copy Is lheTeto
annexed, which resolution directs tuc SounoSi W 'uo
Coynoraton of the City Of New York, TO take posses
zion OF all the books maps papers records and docu-
meats connected with the Office of the Street Comms-
sioner of the City of Newfork, as In SAID resolution
mentioned or any other resolution or resolutions ord
nance or act directing permitting transfer or de-
livery Of any books, maps, papers, records or aocu
ments. apperaining or belonging to the said office of
Street Commissioner to any other person or persons
than the plaintiff And that the defendant, Charles
Deylin De restrained and epoined from delivering the
said books, maps, papers and documents, or any of
then to any person other than the plaintiff until the
further order of this Court. L. A. PEABODY.
July IS 1857
Other members of the Board were also served as
they arrived. Many quite astonished to ascer-
tain that the rule Of injunction rule that worked
both ways
SUPREME CoURT-sfEcIAL TERN-JuLy H-Betore
Judge PEABODY.
Albert Woodruff and al agt John II. San ioorn
Ordered that plaintiff be permitted 10 set forth mat
ter amended supplemental complaint as ne may DC
advised payment Of 81 costs VI opposing this motion
In the matter of appointment Of Special Guardlan,
n..l. n.1.