The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-25
THE STREET COMMISSIONER CASE.
Une Application for a Mands,nus against
street Commissioner Dsvilu.
SUPREME couRr-sPEcIAL TERM.
ludcA Peabody


Before Hoa. Judge Peabody.
Juy4-In ne MATER Of he application Of Dcniel D.
o.o.y to copl Charles Derlin to deliuer him ne
ssd papers Of ne Stree Commissioner cbics The Court
opened quarter 70 O'clock when Mr.. Busteed in
formed the Court that he had affidavit TO real.
Mr. Hed wanted 10 know wha, was the subject Of the
AFFIDAVIT
Mr. Brady-Let II be read In the same manner 90 we
allowed your yesterday, then you win know wha,
a about.
NJ Busteedwe adjonfped yesterday afternoon SO that
we could have an opportunity 10 make amendment to
original affidavit, in order TO the matter
introduced in the supplementary affidavit amending the
petition, which was introduced yesterday With this view
we have prepared and propose 70 read this affidavit
AL parties agreeing, Mr. Basteed proceeded to read the
AFFIDAVIT
Ciiy and County Of Neao York. ss-Chares Devn being
duy that he the defendant in this proceed
pg that be was duly appointed Street Commissioner on
Tuesday the 10th of June instant, by the Mayor with
the ADVICE and consent OF the Board OF Aldermen, and
rhat be took the oath Of oce and fled his official bond in
due form Of law with suretes approved OF by the Mayor
that his immediate preds Charles Turner who
entered upon the duties OF the Office Street Commissioner
the 9th day Of June instant un Ter and by virtue OF the
ordinances OF the Common Council he having been for
long time heretofore the Deputy Street Commissioner;
that on the 9th day of June joseph Taylor, who
was the predecessor OF Turner, died, and as such
Deputy. Turner, the 9th day Of June, under and
by virtue Of the ordinances aforesaid, entered upon
The duties OF he office continued hold Office
10 discharge all the duties thereof until the appointment, of
5epopent when Turner surrendered the office to deponen
that since this deponent entered upon the duties Of
the sad Office he has held undsurbed and peaceabe pos
session OF the has transacted oil its BUSINESS and has
been recognized the Sire ct Commissioner by every de-
pArment Of the city and by all persons having
business with the office that while deponent has been in
once he has al no time upon any occasion Whatever
employs any force 10 exclude the said Conover from the
Office or threatened TO do So upon occasions Cone
called at the Street Commissioners Office and demaod
nens declined to give him; that the first time Conover
called Wednesday, June II, when after Opponents
refusal aforesaid Conovcr left, saying he wout pro-
cure another Office; and deponent denies that he
said he had force enough 10 keep deponent out
and intended to do so; and deponent further de-
other persons to assist him in keeping Conover away
or that he did keep Conover away except by refusing 10
surrender TO him Of the office that ON the fol-
lowing day. the 18th Of June Instant Conover came again
% donents office and demanded possession OF the books
and papers Of the office; deponeut told him there vas
use Of these repeated applications, for he would always
get the same answer Conover then sad 9" only want
make formal demand and have you refuse me- so that
did again refuse Conovers demand who Immediately left
Of his accord, and deponent has not Conover
his clerks and verify believes, Conover has not
rinoe been there Deponent has been informed by
his deputy Street Commissioner, Charles Turner, and
believes tina, while he (rurner) Acting Street
Commissioner the morning Of Tuesday, the 10th
inetant, Conover came TO the Street Commissioners
ofbce, and was elected thererom by the Shers posse,
who there present and possession OF books and
and furniture OF the Office by direction or the She
r who had levied upon them under three judg
mens recovered the Court of Common Pleas and exc
eutons thereon TO wtGeorge Allen against the Mayor,
Aidermen &c Execution for si4l ~ issued June is,
1SJ6 levy made the same day the books papers &C.
in the Comptroers and Street Commissioner Office Peter
Connolly against defendants; execution for 1884 81
ssued July So 1856 levied day upon property
The People, &c. against Thomas Mc0inn execution is
sued June 49, 1857 for sI 81 levied day upon
and the plaintiffs adavit Of the 23d inst De.
poneni believes that at time while Turner acting
whatever eject the said Conover from the office did
he urner) In any way eject Conover hererom and that
all the force and the only force employed upon any occa
sion 10 eject Conover from the rooms occupied by the
Street Commissioner used and directed by Sheriff
md his posse who held possession OF the books papers
and furniture OF the Office, under and by virtue Of the
levy; the said Judgments sill remain unsasfed that the
levy made upon the books papers and furniture OF the or
ace st continues, and that The are in the lawful Gus
tody OF the Sheriff. and have continued the Sheriff per-
uniting deponcnt, as Street Commissioner, 10 use the
IN the discharge Of the duties Of the ONCE;
SEorp TO before me- this oath day Of June 1851 JAMES
SANFORD, Commiss oner OF Deeds
Mr.. Held-l lie proper that affidavit Is received to 60
into inquiry INTO the circumstances. shall ask that
ine affidavit be rejected, that now 60 into an in
qairy Il s received because We have choice which
course shall be aken move, therefore, that the affidavit
Mr. Brady-we insist that is a Legitimate inquiry
who first had possession Of this Office who has pos
session OF IT, When that he has possession
Of the franchise that he has possession OF the place or
the office where the duties Of the Office are performed, We
insist that your Honor has power 10 inquire as 70 who
bad possession Of the books and papers thppears that
the defendant had possession and claimed TO hold that by
be dismissed because the constitution viii not permit this
Court 10 try Of that kind. under such proceedings
|. these a man clam 70 an ONE IS
Jury As the case o. other disputed property. When
you permit The party 10 swear that be had pos
seseop, We have the ghi 10 answer ~ and there sup
poee the matter must stop. Now, Mr. C,pover, his
sfltsvi, did not state thai Mr. Devu was IN possession
Devln states that at that your Houor's order
served he only possession OF the boogs and pa
pers. Wesbow that the possession s with the Sheriff,
who holds il by virtue OF an execution and levy Before
n Tpvl q ugp
the books and papers Your Heno' IL asked 10 direct
Dcvn TO deliver the hooks and papers to Conover which
he could no. do n your Honor should direct because
they IN the custody OF the Sheriff Now. " he holds
tbcm he claims 10 do so by the authority OF the appoint
mep by the Mayor and Boar OF Alderman, and hope 10
demonstrate tina, the idea Of any constitutional power
IN the Governor 10 appoint obcer OF the city govern
ntn since 1873 utterly incapable Of being sustained by
any Since the constitution Of 1876 utterly
impossible Tor The Governor or the whole Legislature OF
the sAie 10 tate from the people OF the city the RICH, -
select city officers, either by election themselves or by
their representatives II you 20 into the question OF us
VIII be the nrst time that great constitutional question
has been TIED in SUCH 80, AFTER ali the viii
examined do not how you can be helped
There will be end OF Witnesses swearing they usually
90 in such cases, both fervor and 10 favor What IL
the Question Of fact upon which we are 70 cali wnesse
NV friend claims that where two persons claim title 10
Office the Judge take steps 10 inquire as to who
In Possession But Conover get another Office There
law obigpg him TO take that particular Office. Is
your honor 70 Determine whether one man Is put out Of
once by volepcei There "a ~ such thing as deprivng
Of his franchise by violence. n Mr.. Conover be
street Commissioner no clubs drive that Office ont OF
HIM ms dc2. tbereere, OF investigating as 70 who trs
got possession turned anybody out by violence, ut
terly improper therefore object 10 the Introduction Of
these proofs But they do in, prepared TO
meet them al
Mr. FieId-Tne only inquiry is 10 whether this afda
vii i 10 be received. NV, Devn swore yesterday that
he In possessen OF the Office, books, papers docu
ments from chat day 10 the present.; aud he IS swearing
this mornng that all these things In the legal
tody Of Me sheriff That is htle remarsablc-bat !
10 the point. shall the additional aSdavr be re-
ceved9 Yesterday made a petition. Your
stated that you were OF the books papers and
docu mene and franchise. We put in reply
in the shape of affidavit coutradictng your alleged pos
ou Of the franchise by Devn There stands
lor what purpose further adavis but 10 inquire into
the Circumstances Certainly none. ! shall therefore
send Immediately Fernando Wood sheriff Willet, OFF,
Maserson and Bennett and Deputy Sheriff Mckbben
10 order that their dispositions may be taken. Mr..
fied read from Revised Statutes, r. 55f, secs. ~
ana Is support Of the right OF the Iu fge 10 snt Tor
these Witnesses Mr.. =. contnued-When we get them
before miss on examine and cross examine
them and ASCERTAIN the real truth. when have done