The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-11-30
THE 0LDPoLICE AND THEIR RIoh''

20 Appear for Trial still Members Of tho
Force, and Entitled to Pay and Duty.
Before Hon. Henry f. Davies
SUPREME cOURT-sPEcIAL TERN.
Nov. 2S.-Phatp McDermoa The Board Of Porics Of
the Metropolitan Police Dsa,id-This case, in which
Judge Davies days since granted an order for the
Board Of Police Commissioners to show cause why an in
junction should not issue forbdding hem 10 make any
new police appointments came promptly at the hour
named Saturday. Not only the counsel on both
sides In their places but the crowded with spec
tators of them members Of the old police force who
anxious TO hear the discussion in reference TO their
rights.
Mr. Clinton, on behalf Of the plaintiff resd the com
PLANT which the plaintiff sets out that he was police
man prior 70 the 18th Of April last and had been since
that he had never had service Of charges
against him. but that the Board had without authority
and withcu, jurisdiction removed him. that the number
of policemen by law was limited TO ,270
that the new Board had appointed and recognized
about 900 That there more than ave hundred Of
the old force who had been legally removed who
ready 70 do duty and who claim their pay and
yet that tho Board Of Police threatening to proceed
and make large number Of appointments. The complain
further that the Board of Police the 9th October
last passed resolution Of the following purport:-
Resolved "Tha all such members Of the old force as have
been removed according to law, members of the
Metropolitan Police entitled TO do duty and receive pay
and that the time the Board appointed commit
tee consisting of Mayor Wood, Messrs Stranahan and
Bowen hear evidence and report the of the
policemen who claimed that they had been discharged
according That said committee had heard evidence
in the cases of several hundred but had yet
ported The complaint then stated that the force was
full, and that all new appointments would be
illegal and void. The plaintiff a tax payer,
asked that the Board be restrained from making any
new appointments.
Mr.. vanderpoel, in answer read his own affidavit
that the Recorder had informed him that he had not
met with the Mayor and City Judge as Police Com
missoners since January last He also read affi-
davt from person who swore he had served writ
notice OF trial the plaintiff to appear before the
Board Of Metropolitan Police Commissioners the afda-
Wit of Mr. Embree the Clerk that charges OF insubordna
ton had been made against McDermo, and that he had
been removed. Also an affidavit of Mr. Nye and an
other Commissioner that McDemott had never reported
duty done duty under the Bard but had adhered
to the Mayor and City Judge that for this insubordna
ton he had been removed in June last and that all the
other members OF the old force had been removed in
similar manner.
Mr. Dean asked the counsel for the Commissioners to
furL sh copy of the charges against McDernott; also
copy OF the notice served upon him. and copy OF the
cord OF dismissal.
MIR Field replied-sayipg they had put in their afda
Wits and that they had no other papers to furnish.
Mr.. Dean said If the Court would take for
hour that the counsel for the plaintiff would furnish copies
the proceedings Of the Commissioners in these pretended
removals not only contrary TO the Metropolitan Po
lice att but in violation Of the rules that the Commission
themselves had adopted and published and were ut
terry void
This proposition opposed by the counsel for the
Board and the Court said the argument must proceed
Mr.. Clinton offered the afldavts from more than FIVE
hundred OF tho old force that notice of trial charges
had been served upon them and yet that the Board
refused 10 recognise or pay them.
Messrs Noyes and Field objected to the introduction of
these afidavits.
Judge Dawes held that they not admissible if OBJ
je,ted 10.
Mr. Clinton teen opened the argument for the plaintiff
H commented upon the position Of the plaintiff as
Board Of the ' Of, repeated Offers 70 agree
upon the facts and argue the questions upon the Legality
which these offers had been met by the counsel for the
Boardprofessing acquiescence and yet awaiting them
selves Of technical objections that the spirit had
been again manifested in reference TO this
He commented upon the various allegations In the
N at ,ssrFs to the
L. That by that ali tefsons who, the 18th Of April
1857, were members OF the police Of New York and
Brooklyn Incorporated into the Metropolitan police
q That member OF that police could be removed
dismissed except upon written charges and after
al service Of the charges and the time Of trial had been
POINTS yoR pKFxScx
Mr. Field for the Board submitted the following points
and commented AT length upon each
First pontIf all the allegations of the complaint were
uncontradcted the injunction would be improper because
Office That purely executive duty wholly ndepen
dent Of the judicial department The judiciary cannot by
any mode OF draw itself the cognzance Of Official
appointments before they made all that IL permit
ted 10 DC ~ by action OF quo warranto TO inquire into
the right Of person no ding Office II II could go further
and control beforehand the right 10 office could order
the department 10 appoint as well AS not To ap
point and the person ON whom should "A well as
the person on when should confer Office In the
present the Board Of Police is charged by the Law
with the duty of appointing TO offices In the police duty
In executing which they responsible 10 the Chief xeeu
tive Of the state but not TO the judicial department The
defendants are board Of officers who cannot be cnjoned
except by the Supreme Court General Term upon eight
DAYS notice. claws Of 1851, ch. ass.)
second pont-upon the facts which are set forth by
the AFFIDAVIT the part Of the defendants there are sevc
raj further reasons why the injunction should not be
granted one OF them N the want OF authority IN the PLAIN
til ever 10 have acted IN the former city police; this APP
poDtment was by the two Commissioner the third not
being present--that was not a legal appointment
Third Point The plaintiff has never been a patrolman,
member Of the police force under the act OF April To-
1857. Though policeman under the former Board be
refused 90 become of the force under the new
Board. II was not possible for the Legislature
transfer the old force 10 the against their consent
nor did the legislature intend 70 do 50 The old force was
any part Of the four counties policeman engaged
for the city could not against his will be made 20 duty
OF H. 10 hold his Office by different tenure from
that under which he accepted Even militia Of the county
cannot marched out OF It's limits nor drafted into any
other force against their wl McDermo,,s refusal 70 De
sistance the authorities and the new aw-deprived
him Of al rights to its benefits There was no occasion
came member Of t. The only part Of the new act which
affects the question u the continuance Of the old force Is
the latter part Of section 81 The police Of the city o. New
York shall continue do duty, under existing laws, until
the nrst meeting the Board Of Police rhen the said po
lice shall hold Office and do duty under the provisions Of
this act members Of the police force OF the Metro
polan Police district" This should be read rs u the
words ssf they wish 30 continue in office we're inserted
the word police Other parts Of the act show that
even policemen appointed by the Board might cease 10 be
such without formal trial Section ~ implies that 20.
cemcn may withdrew resign, wthou, notice, but they
forfeit their pay by doing and section authorizes the
Supervisors the number The who would be
by resolution 10 reduce the force would not be
tried Accepting Incompatible Office was always held
10 he an election 20 hold the other q HILL e3) Much
more should adherence 20 authority by law and den.
ance OF the law and authorities be deemed an
election 10 refuse the new.
Fourth romt--lf he had become member Of the new
force would have been regularly removed by the pro
cccdiugs had against him 1. The charge was sufficient
lie received notice OF the charge, and bad an opportu
nsy 20 defend himself a. The return alleges that ne
PERSONAL y received the notice. D. n he did not receive
H. he by voluntary act prevented notice being served
on him He Is 10 be allowed 70 take advantage OF
his own wrong us Pick ~ C. Notice left at the station