New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-06-24

t,is matter is investigators. II Wood be sincere
in HE desire 10 have The truth known, why vii he 10,
tubnit 70 be examined by any body who viii be Sc
eeted as referee by ,hi- Court. whose proceedings
open and not bsTrosde and whose Office i 20:
surrounded by armed rep The Mayor can pu. o1'
his affidavit. by The carfoad from nov tin do,n-day
20 org be has his police under MS control which,
think, viii not be long.
Mr.. Deen-The gentleman asked Why !; was that
Mayor Wood bad so men abou; the City Hal. csn
answer that he did it to preserve the peace Of the
Gr. Flexible failed most sigtaIy.
Mr.. Desu-And he d'3 preserve II.
Nj. EieG-Ha rreierved Il He preserved It in the
same way that Rob Roy preserved the rights OF
properly.
Judge Hoffman then gave the following decision on
some Of thepoints raised by the counsel:
feel il necessary 70 say word here, though shall
not decide this motion at the presen' time. congra;
uste myself-lsud, indeed | believe IT i the good
fortune Of mo-t Ct the Judges IN This el.yi.hat ap-
pcatons Of this kind rare 10 make al least
myseli destitute from inexpererce CT the necessary
information, Immediately to decide questions OF con-
tempt or any other questions which arise on motioos
OF ills nature. Tbi- appcao ion arises under an qTder
TO show cause, mainly drafted by. myself after an
examination Of the law. IL IL founded upon
rroy;son Of the statute which has been referred
10 by Judge Desn-'2 R. s., page 27s, sec
lion 10, and subdivision ST. being founded
upon that order TO show cause appeared 10 me 10
be tie proper well A. the legal course o be par-
sued-the direction of the statute beng that the party
shs have notice Of the accusation against him for
reasonable tine 10 prepare for his defense. The ai-
davits which are now produced presumptvely make
out case generating this defendant from the charge
of Intentional resistance to the service Of the process
ordered BY this Court. II is not Ia be denied that the
schfer so to speak Of that intended resistance-the
crninality Of contumacy in regard TO an order
Of the CouTt-consisis in the intention; ana
the existence of that Intention must be de-
duced upon knowledge or reasonable information.
In other words, unless Mr.. Wood knew at the time
Coroner Perry attempted TO this order that he
bad an order, to which the defendant was bound 10
pay obeisance-unes- he had that knowledge, OF
some information that Coroner Perry there 70
serve such order be could not be guilty of the attempt
to violate resist the process of the Court His own
affidavit is explicit that no Information wac gwen to
him 10y Coroner Perry that he had such process
tha: the communication which was made 10 him
made through Mr.. butcher, his ordinary messenger;
and that the only information communicated TO him was
that the Coroner wished 10 zee him. Mr. butcher oorrob-
crates this fully He did not communicate to the Mayor
that COroI Pery there with process for the pur
pose Of serving the Mayor He Is thus placed in
position in hitch il appears to me difficult To imagine
that the foundation upon which the alleged inten0no i
violating resisting the process can be sustained IN
other words how any testimony can be addaced which
will tend to convict MayoI Wood and Mr. butcher of
such alsehood-such absolute fdlsehood and perjury
AZ they must have been guilty of in these ai iavs,
If Coroner Perry did communicate to butcher,
ard Butcher did communicate to the Mayor
knowledge Of the process or order which was in his
possession and his de sire TO the Mayor tor the pur-
pose Of serving it, Yet that is not mpossible because
there may be proof of declarations made by butcher,
or of admissions made by the Mayor which would
tend TO neuraze or contradict their positive state
ments | am then brought to the question,
whether under this section of the statute, when
Il eflidavits TO meet the order to show cause,
present strong case TO the Judges mind Of tree
Pom from any contumacy done or intended 1t
rs within the province Of the Court and the practice
fth6 has been observed in similar cases to direct
fhiheI inquiry; and it appears to me that that the
only question; but ut any rate II Is the only question
| - ID. "A aft.rtfh ok imA Ia
consider think at present that the order TO show
cause had sufficient foundation; and again l am
strongly inclined TO the opinion that the provision OF
the Revised Statutes to which reference has been
made by the defendants counsel subdivision sec. lOD
can properly bear any Interpretation which would em
brace case of intended resistance to process or order
known ol 10 be issued by Court, although no actual
service is made upon the party. Upon these two
ponts see no reason 10 change the opinion which in.
cuCed me to grant the order to show cause, although
shall give them further consideration. Inc main ques,
ton is the one alluded to-whether in the case and
upon an order 10 show cause lbeing equivalent Tue
notice of the accusations against the party under this
mode of proceedings-and wbsn the defendant make
case sufficient to exempt hin, Is the course oil pac-
t:ce IN similar instances 10 give an opportunity 10 the
uafy inskng the accusations for further inquiry ana
TO adduoc testimony and if that be the case whether
reference Of the matter to referee woulds be the
proper mode. will therefore adjourn the case for
decision on the application until Thursday at 1
O'Clock.
THE STREET COMMISSIONER QUESTION.
SUPREME CouRT-sPEeiM TERM-Jrsr S-Bsf''s Judge
PEABODY.
In the matter Of the application OF Daniel d. ConoveI TO compel
Charles Devn deliver the books and papers OF the stree
ConnissioE,rs Office, &c.
This matter came up at 70 o'clock this morning be
fore Judge Peabody, in the General Term room Mr..
Conover was in court, well as his counsel, Messrs
d. ID. ID. Field. Mr. Devlin was also present and
sat with his counsel james I. Brady and A. j. VIII
lard Mr.. Busteed appeared on behalf of the City.
Mr. Daniel Sickes also sat with the latternamed gen.
,leman but appeared to take no part in the case.
MIR. Field read Mr.. Conover's petition upon which
the order to show cause granted, and which has
heretofore been published.
Mr. Brady then read the following
AFFIDAVIT or Mr.. DEyLIs.
city Sens duly saith that he !. in possession Of ,hs
Street Conmi..ioreT Of the City OF NeS sna
aud performing its DUTY when ne rse"sa 'us
And hi. deponent further sh that he advised and be-
eye. in law in fact Street Commissioner OF said
That d.pon,n duly appointed to said Office on the 18Th
day Of 1857 by the @sySr Of the ci,y of with
That he has accepted tds said appointment aud mas duly
tken and FLED his oath OF once as such street
Deponeu further saith that at the time he was SO appointed
ha. Turf . ne mas been ,n .S aa s,nsIsnt
believes the right TO do 50 in virtue Of
h holding the oee Of Deputy Street Commissioner Tor the
Deponent lastly saith that be has been advised and believes
that Daniel Conovcr las sht title whatever to the
'A'N y CHARLES DEvLIN.
Sworn this I'd dsy Of June, 1851 before NE,
JAMES SANDFORD, Commissioner Of Deeds
Mr. Brady asked to know whether there would be
any objection TO Mr.. Busted and Mr. Willard and
himself appearing in the case the former for the city
and the latter two for Mr. Devin None being made,
he went on to state preliminary objection.
This is IN the nature OF repevin suit, for the pur.
pose Of obtaining the papers, &C.. of office, and
not proceeding FOR the purpose of testing title The
reasons for this opinion are numerous, among them
..-la;.nI rnn.ora nj r.asons "A hatRaen the two