New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-09

Conover, the appointee of the Governor, had, {"
Street Commissioner de Jaeto, right to the imme-
date possession Of the books and papers belonging
to the Street Commissioners Office. In his eaeo-
rate opinion, which appears at length in another
part of this paper, Judge Peabody touches upon
numerous questions raised at the hearing, and
presents the leading points on which each side
relies in order to prove that there was real ques'
ton at issue. He, however, declines to examine
into the title of the respective claimants to the
Office, on tie ground that a quo cdrranto is the
only proper method Of trying that question. 1t
would be highly unreasonable, in the opinion OF the
Court, to determine so grave and weighty matter
upon an informal and summary application. The
point on which the judgment was made to turn is
clearly stated in the following paragraph from
Judge Peabody's opinion:
my own view Of this statute is that the question
of title to the office should not be allowed to be tired
il il at all that the abstract right Of the applicant II
upinportspt where possession is clearly shown; that
il shall not be inquired into at all incidentally fur
Their than, perhaps to that if in possession, he ha,
color of title; that being in the office under color OF
right he should have this proceeding to get the books
and papers; end the other hand, that having the
best possible right TO efte, one should not have
the possession ii the books and papers by this pro-
ceedipg bile il il apparent he is not in the occu
pancy of Office and not situation to exercise the
functions Of it. Tbs whole proceeding is OIL the idea
that the applicant has succeeded to the oice-that ne
is in fact "He to such Office '-that he IL,
il fact in the Office and needs the books and papers
the means or instruments with which to perform inc
duties Of it, They incident to the office, and should
attend it evershould attend the possession and exer-
else of it-pot the mere right to it-hOwever clear
appears that the right is not accompanied by actual
il cuubency of it, and that therefore the possession OF
them would not enable him to discharge the duties of
the Office. The possession of these as the meaus OF
exercising the function, Of the office il indispensable
to the officer and the public; and the object of thi;
statute il to put them into possession OF the actual
rcun bent for actual use for the time being; not to
decide who in the abstract entitled to them because
he is entitled to the office to which they pertain. The
title to them must ultimately depend on the title to
the Office and So think, should the right to present
depend the fact Of present possession OF
the office to which they are sppurtenant.'
The determination of the controversy between
Messrs Conover and Devlin coming thus to depend
upon the question as to which of these two gentle
men was in possession of the office, the final judg-
ment was necessarily in favor OF MIR. COnOver.
Uple.s the occupant by being turned out of the
rooms appropriated to the use of public Office can
be deprived of the Office ITSELF Mr.. ConOver is as
much in possession to-day as any officer in the
State. He received commission from the Govern.
or, filed bis official bond, asserted bis title aud
authority over everything and everybody appertan-
ing to the Street Commissioners office, announced
himself on two consecutive days as ready for official
business, and performed at least one official act.
Having taken possession, he cannot but retain it
until ousted by judgment from competent Court,
pronOunciDg upon the question of title.
Judge Peabody having thus directly aud une-
iyocslly decided that Mr.. COnover has been and
is now Street Commissioner de faetO, and having
ordered Dir. Charles Devlin to put into his hands
TIE documents of that Office it remains to be seen
whether Judge Roosevelt, an associate Justice Of
the Supreme Court, possessing similar powers and
coordinate jurisdiction with Judge Peabody will
DO his best to nulliy his decision by restraining
Mr.. Conover from taking possession of the aP
purtenaDces Of his office. We cannot think that
even be, with bis admitted love Of injunctons, will
push matters so far He may continue to amuse
himself for day or two longer as he did yesterday
with the arguments which counsel see fl to urge in
support of so novel and dangerous an exercise Of
power; he may listen pacidy to all the nonsense
that is uttered touching the irreparable injury likely
to ensue to the city from Mr.. COnOver's going on
with the business Of Street Commissioner; he may
deectate himself with hearing Mr. Busted read
musty old cases, wherein the power of Courts to
restrain persons from taking 'estovers" is learn
edy discussed; but as for looking at the thing Sc
rously as for issuing Injunction for the purpose
of destroying, so far may be, the operation and
effect of mandamus, previously granted BY another
Judge of the same Conrt, it is impossible that 50
grave mistake should be committed by any judi
cal officer in the city, cave and except Judge Rus
sell, who has shown himself capable of almost
anything. The ab,urdity Of leaving one man in
possession of the books and papers of an office,
while another is adjudged to have the sole present
right of using them is too apparent.
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