New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-06-25

III can that De was ~ p16sf sion NJ ne place or
Office where the duties wee 10 b. performed II L.
tie first then the fact was uramporsut anl i'm.
material much a the question a. 10 bis being
IN possession e the place of business wa lie Or.
Brady had endeavoled to satisfy his Honor that be
had inquiry 10 make eXcebi a; 10 who had posse
sion Of the books, papers, &C., which NJ. Conover
was seeking to obtain, ana that # it appeared 20 his
Honor that Mr.. D-ylin had no SUCH possession
Of them as made hin amenab!e TO his HOnors
co.or Of an appointment TO office, tt., thea
this proceeding mu+ be dismissed, because il
a. not Ia this form that the title could be tried. The
Consttuton prohibited any such thing; the laws Of
the State cd not warrant IT. the analogue. vented
It, and justice ard fair dealing required mat no such
practice should be tolerated. II man claimed tue
right to Office either in possession or in eKpec,ancy
ne he'd just a. much right to have the title passed upon
by jury az man wCud have any other species Of
property, hecause the office was kind Of PROPERTY
When his Honor permitted the applicant to Introduce
the fact that he did have possession Of the office he
emitted bim to Introduce fact, and Mr.. Deyln
bad the night to answer it. There be supposed the
matter must stop His Honor asked to direct Mr..
Devlin 70 hand over the books papers &c, of the
street Commissioners Office TO NJ. Conover, aud
which 1t appeared were now il the hands Of the Sheriff
under these executions Further he MI Brady hoped to
be able demonstrate that the idea OF Constitutional
power existing in the State Government to appoint
officer of the City Government this Island since the
year 1876 was incapable Of being sustained by any
sound reasoning he should contend that by the Ccn-
titDtiOD Of 1916 the power Of the State TO appoint
Ofhcers for this city was entirely taken away de saw
reason for bringing any witnesses here. There was
no Such thing as taking from Mr. COnOveT franchise
which be possessed. he could go anywhere he pleased
and open office, aud IL lie was Street Commissioner
be could act as such. But if Mr. Deylir was in pos
sesMon OF rsOm belonging to the city he could not
be tuned out Of il without cue process of law.
Mr.. Field said that if ne could not show that this
was what every other judge in the State, who had
ever acted upon similar cases and whose decisions
respected, had done, be should fail to show what
lac intended to. lie was asking his Honor to do no
more than Judge EdmOnds did Ia Whiting case and
what every other Judge had done in such cases. He
would moi stop TO comment upon the fact that Mr..
Devlin had sworn in his amended affidavit 10 facts
contrary TO those he had sworn to the day before he
swOre that the books documents &c, were IN the pos
session Of the Sheriff. and had been all tins time;
while yesterday he that they in his posses
sion from the tune Of his appointment TO the present.
Leaving that he would come to the point the only one
now 10 be decided, should this additional affidavit be
received not Mr. Conover had put in his petition
framed the very language Of the law, ana the de-
fendant answered it, not by denying anything ia the pc
ution, but by setting up certain new matters namely
that MI Devln in possession Of franchise, notes,
papers, &c. MIR. Conover then put in reply in the
shape of an affidavit expl aiming and contradicting
thai alleged possession of the franchise by Devs.
There the stood aud there was an issue between
the parties lie had objection TO going into an
inquiry, but it was proper to object an (ntHe to the
recfpon OF the affidavit. IL that were Overrued, he
should request the presence Of Fernando God, JAS. c.
Willett John W. Bennett, John McK Dben and Hugh
MastersOD who concerned in the proceedings al
the Street Commissioners office; if they declined to
attend he should ask the Court under sections "A and %
page 5jl Second Revised Statutes, 10 issue Com
mission 70 any respectable gentleman to be executed
forthwith, and subpenas for these i've persons 10
attend upon the Commissioner, that they can be ex-
amined and cToss-examned BY that way they might
ascertain the real truth about that transaction
Dir Brady contended that the section referred to re-
lated to the powers of the Supreme Cou and that his
Honor sitting i'll Special Term could not possess such
power.
The motion Of Mr.. Field to exclude the amended
afGavit of MI. Devlin was ovsruled his Honor stat
ing also with reference to the hearing of testimony
that the making of issue in the for the Court
10 act upon, carried with it the right OF the Court to
call iOI evidence.
Mr. Brady expressed it as his opinion that his Honor
Ind no power to issue subpoena III proceeding
like this.
Mr.. Field have just sent a note to Mayor Wood
requesting him and Capt Bennett to appear before
your Honor and make deposition. We Will see
whether they will come or not.
Mr. Busted then offered TO further amend the afl
dayt by adding the avernen at the close OF the third
sectlOu that Mr. COnover presented t. the
Mayor and that the Mayor never did approve Of the
sureties of Mr. ConOver-the amendment being IN the
following language
This depOnent is informed aud believes that the
Mayor of said city has never administered the official
oat TO said Conover and that the said Mayor has not
approved any bond or surees given by said Conover,
has any such bond been presented TO the Mayor
such offered to him for his approval"
Mr. Field objected to the introduction OF any new
Issues.
DR. Busted said that assuming that the points pre-
scented yesterday by Mr.. Field would be those which
in good faith the applicant intended u rely on III support
of any argument which his counsel might address -
the Court, he (Mr. Busteed) had omitted desgnedly
TO put into the affidavit of Mr. Devln introduced this
morning. this enial Of the allegation contained in the
affidavit of Mr. ConOver. If they were not 20 AS
sumo that the points made in good faith, but
were intended either for the Court or the counsel OF
the defendant or as gyms tdtHbs then became tnelr
right and duty TO amend the affidavit that wOnld
embrace n distinct denial of the averment IN Mr..
COnovers affidavit. This could not fairly be said to
be raising new issue.
Mr. Field said he did not think that any 'gRjs
Gstuus would lead the counsel MIR. Bustecdl astray
and get him any further ibto bog than he already
was He thought the counsel had had sufficient no.
tice Of the application They knew what their de-
fence was and they had consulted together upon the
matter At this stage of the proceedings, after two
days had been occupied, he thought highly uoust
10 allow this further amendment TO take place, be.
the object of it was TO deprive Mr.. Conover OF
the fruits of hr office and the public of his services,
by the gross msdeeanor on the part of the Mayor Of
this city.
Nj Field here stated that he had received iniorma-
ton that the Mayor would be present soon, in re-
spouse 10 the request
Judge Peabody decided, in brief opinion he deliv-
cred TO admit the further amendment on the ground
that was nothing further than denial of an aega.
ton of Mr.. Conoyer in his affidavit.
Dir. Field announced that the Mayor had changed
his mind and would not respond 10 his request after
all. lie had just received note from the Mayor,
stating that he not willing TO volunteer his testi-
mony, but would obey any order of the Court.
Mr. Dean, Mayor Woods counsel, stated that the
Mayor did send word that he would come immedi-
ateiy in response to the request of Mr. Field but on
consulting him Mr. Dean, lie advised the Mayor most
distinctly not to volunteer his testimony; but if the
Court issued any process to obey it, as he always did
MIR Dean stated that Capt Bennett declined to come
on the same grounds.
Mr. Field-I presume there will be five hundred
men in the Hall TO resist the serving of the process
when il is issued