New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-09
rur HEARING ON I'm INJUscrioh.

sci in the matter OF toc uPPhcauoh 'oi q P""'"
Injunction in behalf of the City against Daniel d.
Conover taking possession Of the books papers, doc
uments. &c. OF the office Of Street Commissioner.
Mr. Busted announced his readiness to proceed
with his argument in the matter.
Mr. Field thought that the first question to be de-
cided was whether the Court could hear the appIci-
ton for the Injunction.
Judge Roosevelt said he would go on with the hear
ing, and be supposed the proper method OF proceed
ure would be for the applicants to introduce adavits
to support their application.
Mr. Field objected to this course AZ contrary to the
Code of Procedure; he held that they mus, stand by
the case they had made in the first instance
Mr. Busted said the affidavit he proposed to intro
duce was net intended to support the application; II
was only to answer new matter in the affidavit OF the
defendant and if that matter was relevant It was
competent to reply TO it nnder the Code. To be
obliged to accept all the allegations Of the defendant
~ the truth would be new practice indeed -.
Judge Roosevelt said they could read the atii tavit
subject to the objection, and he would look into the
matter. The old practice he knew would admit i.
Mr. Noyes said it was the practice to allow a
party 10 disclose half his case only at r5t and then,
when that was answered. to bring in the other half in
supplementary afIidavits. The rule was that the
party was supposed to make fair statement of his
whole case when he obtains his order to show cause
so az to give opportunity for complete answer.
They called upon to answer only the allegations
in the complaint and the other side should have an
tcipated the alleged new matter in their answer
When they answered the allegations in the complaint,
cia reasons they allowed to renew their appca-
ton or to adoin, and afiidavits. This rule
could not safely be departed from unless case OF sur
prise shown.
Judge Roosevelt said this case, though in form a
motion for an Injunction, was in principle the same az
an application on the other side to dissolve He wOHd
allow the adavits to be read subject to further con-
sideration.
cation to dissolve but an original application on their
part for an Injunction, which had not yet been
peremptorily granted in the case.
Judge Roosevelt said he had no doubt IN, decision
was in accordance with the spirit OF the Code, WHICH
be preferred to the mere letter..
Mr. Busted then read the following
AFFIDAVIT OF CHARLES DEvL1N.
Ctr and COUNTY of Nen- York, ss.-Charles Dew
lin of said city being duly sworn saith that he has
been advised and believes the Governor OF the state
of NewYork had no legal power or right to appoint
Street Commissioner for the City, OF New.York, in
place of Joseph s. Taylor, deceased.
called an official bond. which the above named Con-
over alleges that he filed with the Controller OF the
City of New-York. and that the same has never been
approved by the Mayor of the City OF Newborn a.
deponent has been informed and believes.
That the same bears no certificate OF approva!
upon it..
the Hon. Charles A. Peabody to obtain possession OF
the books and papers of said office, the said Conover
by his counsel admitted that said bond had not been APP
proved BY nor submitted to the Mayor, and called and
examined witnesses to prove that the Mayor had pur-
posely prevented said bond being submitted to him
for approval. go
That in the same proceedings. Azariah C. Flagg,
the Controller of the City of New. York, was called
and examined az witness in behalf OF sald Con0ver
and swore substance that he had not filed said bond
az an official bond but received and Endorsed 1t to
show the date of such receipt. he also swope that he
did not recognize either Conover or deponen as the
Street Commissioner.
Deponent further saith, that, as he has been in
formed and believes, the said Conover on the 18Th DAY
of June last presented himself at the rooms usually
occupied for the Street Commissioners Department,
and claimed to be such Street Commissioner, but, as
aeponent has been informed and believes, he was not
Iecogn Eed as such.
That when he first made such claim and at all times
afterward until deponent, by his appointment by the
Mayor with the consent of the Board OF Aldermen,
entered upon the duties of the office aforesaid Charles
Turner was the Deputy Street Comm ssiOner OF the
City of New York, and such under the ordinances
of The Corporation of SAID City was duly authorized
to perform the duties of Street Commissioners unt tne
vacancy occasioned by the decease OF Taylor was
filed by the proper authority. -,
That said Turner utterly refused TO acknowledge the
aforesaid claim of said Conover, and discharged the
duties of Street Commissioner aforesaid until deponent
entered upon that office.
recognized as the Street Commissioner OF the CITY
of New-York by every Department of the City Gov
ernment unless It be that the Controller has not so
recognized him, which deponent does not admit; ~
CHARLES DEVLlN.
Sworn before thi; s;h day Of J.y 1881 y, n..s,
Mr. Field claimed the right to answer this affidavit
by Others showing that the Mayor was contumacions
in the matter Of approving the bond and also an am
davit showing that Judge Peabody had decided that
Mr.. Conover was the rightful Street Commissioner. .
Judge Roosevelt suggested that in that case It
would be necessary to appoint referee TO get al all
the facts.
Mr.. Field said the Court could hardly do them a
greater kindness.
NJ. nrstaad ob;aot.d IN those ofdayits and also 10
the reference.
Mr.. Field was finally allowed 10 read
MR.. COSovERs SUPPLEMENTARY AFFIDAVIT.
Daniel ID. Conover, being duly sworn, saith-On
this 9Th day of July inst, Mr.. Justice Peabody has
decided the application made to him by this deponent,
TO compel Charles Devln to deliver to him the books
and papers appertaning to the Street Commissioner
Office, and by such decision has determined thar this
deponent is the de facto Street Commissioner, and has
ordered Mr. Devlin to deliver to this deponent the
said books and papers. ID. u. C0NoyER'
After some discussion as to the order OF proceeding,
Mr.. Busteed announced that the argument OF Mr..
Brady the question of the titles OF the respective
parties to the office delivered before Judge Peabody
land which had been reported, would be submitted TO
Judge Roosevelt in writing. Mr.. Field claimed the
right to make verbalrepyto Mr.. Brady's argument
Mr. Busted then proceeded 10 open the case in be-
half of the city, The following are
MR.. BUsTEEDs POINTS:
I. The complaint states good cause for granting an
injunction.
1. The rules of equity applicable to restraining
mere trespass capable Of being dressed by pecunay
damages do not affect case like this where the re-
moval Of the property from the possession OF the
plaintiffs would produce injury for which no adequate
compensation in damages could possibly be made.
3is; Livingston VS.. Livingston, 6 ib., 497; N. Y.
Printing and Dyeing Establishment VS.: Fitch, Paige,
81 Douglass VS.. Virgins. J. e. r., 49, VAnck
vs. The Corporation Of New-York, j. {. H., %;
Hudson and Delaware Canal Company VS.. N y and
Erie Company, Paige, 323)
2. The defendant does not deny that he means to