The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-09
OUR CITY TROUBLES.
v><~N~DoO~r~~-No~0~-N1
TINE STREET COMMISSIONERS CASE.
Judge Peabody's Decision in Favor
of Concver.
Argument before Judge Roosevelt for
an Injunction.
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VIE PROCEEDINGS OF THE COMMON COUNCIL.
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Vie Coupcilmen in Favor Of and the Aldermen OPP
posed TO Giving Up the Police Property.
TINE MONSTER STEAMER GREAT EASTERN
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sRs,ssss Commissioners 70 60 Ia Europe to see
her Agents.
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MOVEMENTS OF THE NEW POLICE.
viii the Old Police be Employed.
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M&aGsT ON The BODIES OF The RIOTERS.
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&c. &C., &c.

TIE cOMMIssloNKRy OF EMIGRATION,
STREET COMMISSIONERS CONTROVERSY.
sonovEn, rHA GOVERNORS NOMINEES, SUSTAINED BY
JUDGE PEABODY.
srrrEME CoURT-sPEtTAI TERM.
Before Hon. Judge Peabody.
In TIE mos:T Of the dppticaiom Of d. u. Csooer 10
p<s CAayles Dcrlin to deiur up he books, papers, de-,
q Ae Street Commissioners 0fice-Judge Peabody deliver
the following decision in this yesterday morning,
q IL ocloc the General Term The Judge stated
The facts, q foilowv-
motion Is made by the applicant for an order com.
psDg the respondent To deliver to him the books and
pers spperahipg 10 the ONCE OF the Street Commissions
a the city o. New York.
NE motion is made under Rev. Stat, p. l25, sec. Sc,
wbch provides that when person appointed elected
once shal die, and any books papers appertan
ssg such Office shall to the hands Of any person.
the 70 such Office may demand them, and on
their being withhold order may be obtained on sppi
caon 10 Justice Of the Supreme Court for their delve
may be Issued and the property delivered to the
successor.
The facts .ppear to be that Joseph Taylor. the late
facumbent Of the Office was elected In November. 1856,
Soe the term years from the first day OF January
following Os56) He entered and continued in tho ohce
until the 9th day Of June, 1857, when he died
On the l2h day Of June Daniel o. Conover appoint
ed by the Governor 10 due form to l the place On the
Ism Of june be took the oath Of ONCE required Law and
Asod with the proper ofcer He also executed the
day and ned with the proper officer an Official bond,
With two suIeties, In the penal SUN Of $4,000
He then proceeded TO the beleDxng 70 the city
occupied a. the office place business Of the Street
CcHmssioner, entered them, claimed tina, he was Street
ma asserted authority over them and
sce, and locating himself at desk, offered To perform
and did IN one Instance e. per,sr o,'r "
rseepos of ,b DISCO and bus incss by virtue OF his
sce un the usual hour OF closing the place Tor the day.
when he len, az the place was closed
me day he returned, resumed his place and official
yesion and remained time there ~ his desk al the
acs properly occupied by the head Of the department.
nCved orcibly from the rooms He returned pcrt day
md vas again removed by the zane person ON these
scrsscns his removal without volcace, but it
sen forcblc. and with expressed determination
DVi toierate his presence there.
me Deputy Street Commissioner, who rghtfully in
Of the books and papers and in charge OF tue
b0spess while the vacancy the superior Office continued,
refused throughout the Of the applicants IN
the oce TO recognise his claims to Official coarscter and
whcd from him the actual manual control OF the books
sd pagers belonging 10 the Office
On the l6ih of June and alter Copovfr's last removal
o premises, the respondent having receives the
appointment Of the Mayor with consent OF he Board Of
sood duly approved and entered The and took
Of TIE books and papers, clamng be Street Com
missioner by virtue Of hs appointment and thence hitherto
On this state Of facts the applicant demands order
from me, and warrant by when he shall he put IN pos
For the spptcant-Messrs d. ID. foid, D. he.d and
Noyc.
Pr-ABopY-rhe exact function devoivei on nae by the
statute which called TO ACT, being Asoor,aned,
npeh Of the deay Of deciding the case before me will,
think bo To this Inquiry then, will dire,t
my attention first
me SEXTON OF the statute q n =. i.b, soc se,) pro
vsdes IN effect. that II person elected TO an once die,
and any books or pers appertainng TO the efice
shall tho bands OF any person, the SUCCESSOR
70 The Office may sdop, proceeding get possession
nj bok anndua a
cf the substance OF that section far ~ B applicable 10
shis person has been elected 10 the Office OF Street
Comm the city Of New York. That person has
ded and books and papers belonging appcrtsnng 10
that occ 10 the HANDS Of person the respon
sens). Thus far the before me Gomez within the
a6aante These facts not seriously conroverted, and
lhcse having occurred, certain person, or rather
rsrse, sustaining esrs M Ts 70
se may and he alone OF all the world may, through
chs statute invoke my aid In this proceei'ng TO Obtain
possession OF such books or papers The applicant says
h the Of the declared 10 that odce, and
ne produces what he claims In evidence OF his title,
20 wit: a commission showing his appointment tn the
osBoe by the Governor Of the satc Tue effect
q this matter OF controversy between the parties.
me applicant asserts that 4, coners ON him the ofce an
She respor denies that does this and the power of
the Governor TO Oh the Office by appointment - a. In
tysus between the parties On the decision OF that que
ton must The u nate rights of the parties to this proceed
sng mainly depend The respondent claims the eco by
virtue OF appointment from dnerenis the Mayor,
with consent OF the Board OF Adermenbut bis tile Is
necessarily be exsmir ell here Tor IL the applicants
claim s good the respondents s, OF course, bad and
the applicants s bad is net important to cxamDc thu
Of the respondent, Tor this prcceojbg can only be main
taued hc strength OF the applicants csm IT. there
fowc the applicants claim be not well founded be must
fhii, and the rehef sought must lie deucd,
shcugh the claim OF the respondent should 20 be
equally detective The unly question: then, OF all those
raised and discussed on the argument Of this case which
need to decide whether the applicant IL the successor 70
che Office Of Street Commissioner. rhs power G the
Sovcrnor 10 mako The appointment depends entirely
on The act Of February ., 1Sis, which provides cha,
ssvhcpevcr vacancies shall exist or shall occur in any
~ she Offices Of this State where no provision Is nov
.ppcp, some suitable person VIC may be eligible 20
the office 80 vacant, or 70 become vacant, Unit the
cowncncement Of TIE political lcsr next 'ucoeedng
the trst annual election sftcr the happening OF tse
vacancy At which such officer could be ny elected
An objection was made the srglncnf tpst this
sod no, saie oGce think Il IA a CITY onice-,nsi
H. that II belongs 10 the clsv called city az distin
gsished from hc olasses called co1nty, town. village
~ STATE osloes, bat these depomnsons are used 10
disGngudh the several cissses OF scs from each
oAher, and for purpose o, convenience chiefly, and
within the deroulnaed county, village city offices.
N distinguished from those usually known by the more
generic Of sas office, does NOT prove tend
move that Il Ia not fact state Office, IN the language
OF the act, not "of the oF.es OF tos state Ca the
contrary city county s3wn so v sc,c 1s aye al Of
bcnsive which the LANGUAGE Of tbs statute % ev
IDENTITY used andths though acty office, never'heiess an
ofce OF this STATE and embraced 10 tue eras uses "a
this statute This passed to carry oG prev
sion OF the constitution TART 10, - which dceots, IN
general ierns, that 'thc Legislature shall provide
for fing vacancies in Office. and neither the coos
tntion, IN using the terms 'vscanCes IN ohcs, nor
lbe stallte, in using the terms "vacanccs In auy VI
the Offices Of this Safe" 10 leoK 10 provision
for vacancies IN particular class OF o1ioes. Quite toe
reverse This statute provides fO- filling this oCe. u no
other proviGon was then ("is nov' made by Law for h
ing n To t application OF this statute IN as scve
raj other objections besides this uade BY the respond
cot J. That x u applies 10 city ohces, e. in GER
sap aspect reFugnsnt 10 the constitution, (Art TO-
~ which prsvidcs that all city ocor- whose an
peinsment " not provided for ny that couettaton
sha be elected by The electors OF sach cities or APP
pointed by such authorities thereof as the Inr.siure
hall designate for that purpose ThaiAtise act OF
February ., 1889, cannot FROM ssure he Eed to tbs
os.., berg not elective. f*Mc provides tbst the ~.