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

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question before the Cozrt. II The contrary The proei
Of intrusion and Of actual possession OF the office eoGd
be gene into, 70 thOw that there wac an intruder
whom i vas the duty OF the Court 10 deprive Of the
documents Of the office. The proceeding was under
g 81 page 336 . Revived Statutes lith editonl which
!. TO be found IN Mr.. Fields points below The feet
to who was legally in possession OF as Office would
then be in controversy and matter TO be deter n ed
hv proof. II, could be shown that Mr.. Conover,
under an appointment from the Governor, for which
there at least the color Of right, in possession
G: tie ottiee and tarsaeting its business when an
avn I'd mob burst into the building ard iorbly elected
him. AID ths: subsea uebtly Mr. DevhH seized the
books Of the ofce The fact would b. relevant snd i'm
yoriaLt.
Mr. Brady insisted that this proceeding applied only
in the Of person whose title TO office vas uo
disputed. II was 20 decide whether tha. person had
possession OF the papers when they We're taken from
him By who had 10 show OF right. la defense OF
tie holders possession, it only Necessary 70 show
tia; il was under bona ide claim of right. There
we're di-Puted facts upon the application, and there
was therefore, 10 occasion 20 take proofs In support
Of this position, Mr. Brady cited number OF anihori-
ties upon al Of which Mr. Field stated tina; he himself
relied, and which are quoted in his points The quo
warranio was he sad the only mode by which to try
the rite 10 Office ard he understood that the papers
were already being drawn for such proceeding.
NJ. Field proposed 20 put in an affidavit 70 show
The circumstances under which Mr.. D-vlin obtained
possession Of the Office and the Cont ruled ha: such
an affidavit would be admissible. Mr.. Brady said he
MIGHT want 70 present counter affidavit.
III.
the following affidavit which was then introduced:
Mr.. coNOyERs AFFIDAvIr.
Daniel D. Couover, the aboveramed app ant being sworn
oner on Saturday June IS and remained possession thereof
durns the day that Monday Jane IS he retained posses.
et in the Hal Of Record. GanI whole
% that Tet ae taf fS he moaning S bis aid
and transacted business pertaining to his said Office and
b.sdrd Sy joan " Bnae who stated that he
scng by command Of the MayoI finally eetsd dePonnt
"Wednesday morning June a. deponent returned 70 his
said rooms, and W., there, met by Charles pey'
Ren,. W." desk and said b,: he had .ep
.sf ths the said Deyn had win him large force of police
ether persons assist him IN keeping Opponent away
Tat he is advised and believes the Charles Devlu has
been IN Sly way in possession Of the said hce except ey
retaining the aforesaid and the books and papers o me
ofce the Icbe expulsion Of dePonent AID further
that dponeH' informed and believes ChSe' f.Ine, aa
had possession Of sag rooms OF the once o, ne
Commissioner except deputy under deponsnt - ohei
Ies5. sorn. June p. 1851 before me- C. A. PEABODY
The affidavit having been read, Mr. Busteed OBJ
eot6d 10 It's reception, the ground that raised the
question of title TO the Office of Street Commissioner
the very question which the Court had declined 70 Try
| hire. ,
The Court interrupted Mr.. Busted, saying that
:" decide" may take any position II pleased. .
Mr. Busted remarked that that disposed OF tne mrs,
objection but he bad another to make. The aiiidaVlt
presented entirely state of facts as compared
with those presented in the original petltlon IL raised
catos required time for consultation as to their next
course of proceeding.
| The following, which were handed up to the Court
are the points Of Mr.. Field upon which he will argue
| on Wednesday:
Mr.. FIELDS POINTS.
First Poiat-Mr Conover has been duly Appointed to per
form the duties Of the Sae made vacant by the death Oh NJ"
Ti Cop,n,ion 81 the state article TO- section 81 Ia.
made il the duty the Legislature provide for hng the va
csncy by the death the late incumbent BY dec
ing tba, the Legislature shall provide for filling vacancies
The LEGISLATURE by the of Feb s. 1919 provided that
e@s II this State where no provision made by law
for filing the Governor 'hs appoint some suitable
person who be eligible 10 the office so vacant or TO De-
come vacant until the commencement Of the political year
next succce annual election after the happening
ofthe vacancy which such officer could be by law
At the time Of the passage OF this at no proy'Son e' eeeh
missioner Indeed Office itself not known to the laws
ofho State II then existed only by the by laws or ordnance.
there be subsequent law providing another means
Of lns Vacancy in the Office and to th9 extent epeans
mining The question q such repeal we must 6sr IN mind sn n
well snow rule that epsa' are 70 DC sa 'D" out 'u
Thee hsv been il subsequent statutes pro
y sas ,f sL ,c ~ u H. 5 ne act Of April r. 1888 and the
sct Of June a. 1855 were all repealed by the
psss hat passed April a. ISL and unless that give.
power filing this vacancy to another officer the power OF
q April ~ Is51 1.-THE pre;en, charsEl does Is. not
ice in question There are two part. q the charter which have
m One Of them SGD section which declares that until
the Common Council otherwise direct the existing ordinances
and inconsistent with the chatter But clear that
this section cannot apply Ires. the Common Council you'd
fl.d which /; begins the question ,., o..ah v
ite VTy n. po !. that whh-ater providing that
the Mayor Controller sud Counsel shall be elected by the
spppted by the Mayor with the advice the
Aldermen Bot this provision doe. not attach %
street Comn till the lot of January 1869 Th. imita
the 18th section given by the 5t section which ~ IN
,b. d. he MayO Aldermen
yded for this Act shall be elected at the hr,t election or
to be h SS e ss Of
1857 All persons who shall have been elected under former
laws regulating affecting the election Of Charter Sfcst;
shan BE in Ocs :. the time Of the passage 81 this A
shall continue In office until the ohcer. elected a'
missioner Repairs and Supplies and OF Commits OF
.e and sTPs t e "e Office. II controer Counsel
to tie Corpe ration Street Commissioner and City Inspector
soS,ope in oses until the expiration terms.
and shall not be removed from oee during nSa "
70 40 of this Act and all other Charter Officers and all
School officers and each Governor Of the Aims House whose
term. Of of6ce nav expire the present municipal year
.hs be elected the day before provided for BY this
Secnd POnt-Mr Conover having been duly appointed to
the Office entitled to order for the delivery 70 nun oil me
S S.5 s sssai sad P'Rss 15 sss 9th d $40
Sec S. "Ifsny person appointed or elected 70 any once ns
CT rspers belonging sppanins to such office shall come 70
The hands q the ssn ;uS aeS Soos
from the hayns the same IN MS ana 90 a
withheld,
srsed NAV in Ike make oath of the delivery Of such
Look ud nsp.rs that TO his pOsseson ad IN case
Of omission TO such oath end to deliver up the books and
paper. demanded such person may BE- committed 20 a ana
xrraut NAV Issued and the property seized by
virtue thereof may delivered 70 the as herein
b+fre nre.cribed Matter Of Whiting. Barb, 5ls
mr. port-The objection that Mr. Conover has not filed
his cath foce end ocs bond tensbe He has taken
III. b tnd NOT being able the Mayor fled IL IN the
oe with his clerk He has executed proper bond with the
requisite uretie. which the Mayor refused TO SEE ana was
therefore fled with the Controller without tae Mayors ap
proyr The Mayor could defeat The execution OF the ONCE
" fr 10 decide upon the ssciency Of the slreties Nh
Coroy- ed al the which il his duty 20 perform
eeIeu Of duty BY the Mayor cannot dspnye him Of hs
| flee nor the public VI; his services , -. -, g.,
FotTn poiHt-Gor Is IL tensble Objection that tue C1hst