New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-05-02
REPLY TO JUDGE RUSSELL LETTER.


by reason Of It's illusions to the counsel Of that Board
been handed to Us by that Commissioner.
We know Of nothing to justify the assertions OF your
letter Of any delay on the part of the Board OF Poe
or Of any If th,if counsel in meeting any question.
raised for Adjudication respecting their title TO the
office they fill by Executive appointment e
The proposition Of your letter that The counsel u
the Board Of Police should take the peculiar part as
signed Us in proceeding between Mr.. "ood ana
yourself confessed by your letter to be prepared iot
that purpose and not to arise from any difference OF
interest or opinion between you II an inVaoh 10 ara
in a colusve litigation to the end OF obtaining fraud
ulent judgment. -.
ton than it deserves or was expected to receive, IN
Giving YOU for our that the only course we
sba take in reference to the proceedings your letter
has brought notice will be. in duty
selors Of the Supreme Court to lay the evidence OF
the character Of the litigation before the Court.
WIN. NJ ExARTs ,ns DAVID DUDLEY FIELD.
"''' " joshua NJ VAN corr
The Hon. A. D. RUSSELL, City Judge.
will also submit au affidavit showing the exact re-
lation between the parties to this suit and leav-
ing no doubt in connection with Judge Russels letter
of il, cOllusive character.
Mr.. Noyes then read the affidavit of James r.
Cummings, who swOre upon information and belief
that Judge Russell in collision with Mayor Wood
TO institute this sut-bOth Of them denying the
dity of the law. This statement was predicated
partially upon the remarks Of Mayor Wood before
the Chief and Captains of Police in which he stated
in presence Of Judge Russell that he represented the
ma ity Of the elG Board Of Police Commssi in
his resi- tance to the carrying out Of the provisions Of
the Metropolitan Police bill. The report of the
marks of the Mayor en- that occasion in The TRIBUNE
was also read in connection with Mr.. Cummings atf-
davit.
Your Honor will then perceive that by this attempt
Of the Mayor it is sought to determine grave ques-
tOns Of law Lot only here but in the General Term
of this Court, ard in the Court Of last resort by col
fusion with willing defendant, who has wish to
oppose any interest III opposing, the success of the
scheme which both of them have equally at heart.
Aside from the question of the Judicial imprudence
which avows such purpose and the illegaity
of such proceeding the counsel Of the Commissioners
have determined to call the attention OF your Honor to
the singular aspect in which the case is presented and
to declare that, while leaving the propriey of any
further proceedings in il to your Honor without any
further suggestions from them that inasmuch
judgment in fictitious suit is entitled very little
respect and has force - authority, they will not
in any manner lend their aid cOuntenance to it.
And while they their anxiety to facilitate by all
proper and legal means speedy decision of the great
questions in controversy, they will not under any cir
cumstances render any assistance to that end by any
irregular course, before any tribunal chosen by the
Mayor and his advisers, in any manner out Of the
regular course of judicial business already assigned
by the Justices of this Court in the allotment Of their
duties. That any disposition that may exist to ac-
ceerate the first trial of the quo parr0nt0, any
subsequent hearing on appeal of the same the Police
Commissioners always have been and always will be
ready to meet and that their whole action thus far in
every proceeding commenced ag-inst them IN the
Courts question the validity Of the act in controversy,
has been to hasten the action of the Courts and resist
the delays Of the opponents of the law.
Having concluded his remarks, Mr.. Noyes left the
room, with Mr.. Ill., Mr.. Evaris, Mr. VanderpOel, and
Commissioners Draper and Nye, as Mr.. o Conor rose
TO reply.
Mr.. OConor said that it was matter perfectly no.
torous that the statements in Judge Russels letter
were true, that the Board of Commissions of
Police only sought to protrac this discussion to pre-
vent settlement Of the question of constitutional aw
involved. They wished to make the cause of public
justice in the City OF New-Y0rk suffer by the laws de-
lay. So far they said they willing TO expedite
proceedings they said what papably untrue.
What had they to gain by procrastinatng the settle
ment Of this, the main question II they could estaG
should come that no preliminary injunction could re-
strain them from acting and that they must be per-
mted to net until final Judgment was rendered. they
could hold this office until some time next FALL with
ont as they Mr. q ConOr and associates) conceived,
the warrant of the Constitution, and without the
opinion of a single respectable counselor that
gentleman believed it to be constitutional. That
new Board wished to place themselves in a posi-
ton TO force their way into this Office, if by the des
perae of desperate men, hungry for the spois
of Office. Matters being in this attitude, Judge Rus
sell-beeviDg to be sure that this act was unconsti
tutonal and that he might disregard it and obey the
mandates of the preeAisting law-had said, Il will
not obey the existing law" That presented suta-
This case presented nothing but the naked question
of constitutional law. Those gentlemen in the
suit against them had determined not to per
NIT the question to be decided until the Fall.
But the stand taken by Judge Russell presented an
opportunity to get il tested before. To understand
that the Court only wanted an argument on the law by
the counsel for the new Police Commissioners; but
they refused to make that argument Why should 1t
be said that the suit colusve and unfair because
Judge Russell happened to believe that the law was
unconstitutional Would it be unfair to take into con-
sderation the unfair attempts of those Police Com
mssOners to protrac the decision of the If The
Court decided in favor OF this application for awrit
of aaand0mus then the matter would come before the
General Term on Monday, when congnizance of the
motion of Mr.. Noyes could be also taken.
Judge Roosevelt-l shall certainly assume that the
Attorney eneral Of the State, in using the name of
the people the aide and Judge of one of the
Courts ON the other, although there may be concert
Of action for certain purposes there il no unlawful
collision; there certainly is not from the evidence
furnished by these papers. The impeachment Of the
acts Of the Attorney General is assumed upon mere
hearssy evidence, to which no opportunity has been
given for an answer; but as it has been said, when
the up in General Term, It will be perfectly
competent to renew these sfhdsvits there with the
view OF acting upon the discretion OF the Court Ii 10
not question of the rights of parties, but question
whether the Courts are TO go on and bear the case
under circumstances where the parties are strictly
speaking not hostile The Code under which we are
proceeding, contains provision which in Its spirit
provides for cases somewhat analogous to this. The
language of the Code is this
Parties question Of difference which might be the sub
ect Of civil action, without action
containing the facts which controversy depends and pre-
sent submission of the TO any Court which would have
jurisdiction action had been brought but IL must appear
BY AFFIDAVIT that the controversy and the proceeding
in good faith 70 determine the rights Of the parties the Cour,
shall thereupon hear and determine the General Term
aud render Judgment thereon action depending"
This case, l admit does not come within the title OF
that provision but ii is question if the spirit oil
that provision would not apply to this case supposng
as am bound TO suppose now, that it is bona fde
question that is really ard sincerely entertained
matter of opinion one side at all events aud is
tod h.