The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-25

a las Only Is between bird persons one both hsv-
On and ny sS,s tine pm
party be must show that he y officer
ansa ponssrous perversicn Of the law on this head
10 sAy Q claimant AFTER two three days alleged
pssscssn may go before JUSTICE show that he has him
sell no right tile the Office, virtually admit inst the
us,iee may ,hereupon AXE The books and papers from
hands OF the lawful occr and deliver them 70 the
Fourth ID is TOO plain proposition for serious argu-
that The appointment Of Mr.. DevIin was valid and
that Tia, Of Mr. oonoyer vas void ,...
shall be appointed BY the Mayor with the advice and
rbere nothing In any rule Of construction or In the
Of the thing limit this power OF appointment to
The whole power Of appointment vested In the city
auth0lies avery election (oi appo'nmenD is TO sep
CT People Va. oouant II wendei lS4)
The amended charter makes special provision for
s y
evcy Instance required 10 be aed BY local or city author
ig There vas no seces:ity Of providing specially for
ponirg POWER always In life capable OF action, and
BY the terms Of The charter distinctly pointed out
q The attempt fADcful and fxreched construction
Of 81 TO withdraw inter between the enactment Of
the charter and the ls Of January, 1852 from the
,bes 70 leave the ease Of vscsuc, IN the cSe.n.hp Of
de wholly unprovided for except oy stranet
and unnatural apple aon Of the h~ Of lsa0, cannot pre-
| vail
A Judge Peabody declined 70 adopt this construction
10 opinion the tle Jadgc Davies avoided
expressing any opinion on It. Judge Roosevelt intmated
opinion against H. Therefore, 90 far the Judiciary
| Is concerned, this conoeit "a withou, suppert
The inappicabliiy Of the Law Of 1919, IN Its Details
the OF ONCE held by appointment Is conclusive
assnst the right snder Oonover Governors
| appointee. III Wend., 62l
O. The SSH though il projected the Street Commissioner
and other heads OF departments from curtament OF
ibe new cbsisr expressly cootem dated the termination
OF their ho ling before expiration OF such terms Surely
removed under S2l or is Was int that the up
Oiptiu rova I'm cna
should appoint The Of People Coaant, IL wend,
1884, is express authority for the proposition that Taking
this whole section together the subapce Ia the same - II
IL read thus The persons filling the Offices Of Street
Commissioner &c shall continue In Office until the expir.
ton OF their respective terms unless removed from ONCE
during such continuance ~
D. The construction of this 5l prohibiting death or
character which peryades The whole arsumon in support
OF Conover's appointment.
inc constitution art 10, sec o. IN su.nornns inc
to between elective offices and offices held by
g. The Legislature has done 80 The at Of ls49 Opp g.
36 provides for elective offices only In respect TO Incl
dental vacancies occurring by OF death, removal
resignation &C. in Offices held by appoint nen no general
provision made necessary. except in cases
where the Legislature some branch thereof exercises
the appointing power il part OF it, S., 1888, secs
A. and as was necessary to provide In respect
people and the legislative bodies, for they have intervals
SormaU In All other S.ses the apponung power Is al ali
times capable Of action, and exc its functions 10 meet
the emergency at the instant arises Consequently
will be found that in all other or office held by
ponment the statutory provisions relative to the particular
office all vacancies, however arising, whether by
DEATH resignation, removal, Forfeiture or expiration OF
| term.
II The constitution (aIt TO- sec 81 forbade the giving
OF this TO the government people Draper,
Sept. T., 1857. Per Denio)
The Order to show Cause.
TESTIMONY BEFORE THE RKFERKE, HENRY HILTON.
The testimony In this case continued yesterday be-
fore Mr.. Hilton.
Aaron ]. yanderpoel sworn, and examined by Mr.. Bra
dy-h the for the Sheriff. was In the Court
the 18th Of July, when Judge Peabody signed the
search warrant In The OF Conover against Devin
about the time Judge Peabody signed the search
the and stepped towards him paid attention
what then going but walked out Of the room with
rant iha, was his mpre.son for he heard the signing
applied for whom he passed Of the he beckoned
into the Marine Court whether the injunction
had any effect the warrant Of arrest Of Mr., Devln;
does not recoect seeing Mr. Bre YER Mr. Field Jr Mr.
! Farringon they may have been there; when witness
wen! On. Of , SoI, s room Mr. Field J and and ~, Brewer
Mr. harrington until after he brought In the books heard
Jas Brady announce about an Injunction a. he was
pass8g out with Mr. Stearn knew OF that Injunction at
about IL O'Clock AN first informed by the under
Sheriff, at the snernTs ONCE corversed With Mr. Field
and 10 Mr. Noyes, he thinks about the injunction before
Judge Peabody signed the warrant Of arrest also
Mr.. Brady; does not know whether Mr. Conover Mr..
Brewer were within hening when he spoke to Hr Field,
bis conversation very low; when he spoke Field
and Noy he said that nov Judge the
ceorar he supposed Judge Peabody would sign the war
rant but there IS matter CON es up that have to look az
ter Injunction has been served the Sheriff aiming
him from serving them; Mr. Field said, If he don't
them will whether the Court can't deal with
him for oonempt;r said, We will Try that with him
ss he cbooeesthst We should obey injunction
served on Us; Mr. Field asked who has granted In.
jucen against the sheriff. told him Judge lngranam;
something then occurred h the which broke
OF the conversation and he soon Aer went to the herfs
| Office.
Henry BcrthoN sworn-Is ocer orthe Supreme Court
for twelve years present the 18th
July ~hen Judge Peabody signed the search war
| rant In the matter OF Conover Devn; the Judge
LAID II down on c bis desk sncr signing u asked
to hand II to Mr.. Field; handed Il to him he
handed TO his son, who passed TO Mr. Brewer bis
fathers bach al that moment Mr.. ady handed paper
to Mr. Conover, and young Mr. FIELD Mr.. Brewer
con,abe shortly after left the together; heard Mr..
Bdy make announcement about the Injunction 70 the
Cour,; when that announcement made young Mr..
Field, Mr. Brewer Fsrrneton In the court room,
Mr. lie 10 the k OF bis fat ,er Mr. Brewer on HE right
Farrinston hanipg the outside Of the radng
Mr.. Nulte then o, the right eide OF the judges BENCH
| In the enclosure where the clerk sits.
Cross examined by Mr.. Feld-Beievos he Ia conodert
Of the otter parts Of bis testimony that be handed the
warrant TO MI Field; will not testify that young Mr. Field
not looking into the Park during whole time Of
| the procs edngs 70 which he has testified
To Mr.. Brady-For particular witness noticed
| the movement Of the individuals no has named.
| Albert J. Terhune, sworn-Resides at I5s Christopher
street. was In the court the 18th OF Jay when
Judge Peabody signed the search In the matter OF
ConoFer against Devlin; James Brady hand
papers TO Corovsr that occasions that was al the
moment when the Judge signed the warrant heard Brady
he had served that inuncuoa
the tine OF that did not take notice Of Mr.
Brewer and John Harrington; did not them out
| of court TO bis recollection.
| Cross examined by Mr.. Fields a carpenter;
| 10 court that morning because he bad nothing else
| 10 do particularly has contract from Street De
| partment never had docs not rccoect having any
| conversation with any one as 10 hts testimony (,
thought The pumping operation was not reievsoi) did NOT
hear there TO be njdncon right outside the
railing Of be court ROOM the first bench the inside Of
| railing full. Judge Mr..
Brady ADD Mr. Ccnover at the same time, because
behind them all can't swear that cid them all;
Mr.. Conover saw what the Judge did with the warrant
when he signed ~ was given 10 Mr.. Berthelf; did not
what be did with u; know Mr.. Brewer By sight;
Mr.. Berthof take and hand 10 one, did not
notice who At that time looking At sometning else
eorg among Others Mr.. Brady handing paper