The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-15
the STREET COMMISSIONERS TROUBLES.
Supreme Court,
Before Hon. Judge Peab ody.

Before Hon. Judge PEABODY.
JuIy lA-ln he waiter Of TIE application Of Daniel D.
Cnou1 to comptl Charles Decin to deliver up he books,
mofs pap rs, &c. Of the Street Commissioners e6Sce-Mr
Field closed bis argument behalf Of Mr. Conover and
submitted the following points,
Fr-K may conceded that the effect OF the common
law cerOrsri, when issued In . proper and 10
proper remove the record from Inferior ju-
rsdoion and by consequence that jurisdiction cannot
be continued without the record Of what has aready been
done, 10 sufpend all further proceedings hsre The orr
gDa purpose Of the writ get the into tho So
peror Court that might be there proceeded with. Ba
second-The pow er To issue writ has been qualified
or taken away in many cares, sometimes by express
words, the CAGE of hsbess corpus, before final
termination q g. 513 sec CO. and OF proceedings
remove defaniing tenants, q R. g., Ole, se: 40 and
sonemes by implication a. il the case Of the act Of 1920
respecting distresses, &c Claws OF $780, cnap 1874. 20
Johns, 80. Lyme agains, NOble)
Third-Whepever statute has authorized summary
proceeding ard the efec! Of the removal OF the record
would be to annul the proceeding altogether the ncou
gruiy between the statute and the existence OF the
to destroy ts effect amount TO repeal or qualification of
the take away the record in other words to
award ce torari.
Four,h-If II be said that this inconsistency may DO
avoided by the refusal the To issue the writ except
in proper and at proper time, the
vous that the execution of statute doe5 depend upon
tho dis creton OF Judges what Inconsistent with
the courts have power ~ perform and that statute
allow proceedipg under statute which the Legislature
in ended should be summary and uninterrupted to be,
suspended by the mistaken order Of another
judge TIL the mistake corrected, would be to
duce confusion into our SYSTEM and virtually 70 tnwar
the of Lyme agt Noble the certiorari was issued
and served-no statute had expressly forbidden ittne
Dsgrtrae, nevertheless disregarded IT, and proceeded,
and tho Supreme Court approved bis conduct in that
case, therefore, the writ had operatonthe record
not removed by lit was In fact illegally issued and
juetly treated as q nullity.
Nfh-In rhe present case If the record be once taken
from The Judge and carried TO the Supreme Court
future proceedings ever De had not before
the Judge, because he has nothing beiors him which
act before the Court because, though has the
cord has not the power to proceed upon It pro~ddo
never issue after return made 20 the cerorari
(idds Practice. 349) follows, therefore, that the
power ssue the cerorar TO the Judge, long any
thug remains to be done By him. Is taken away by imp
cation.
Sixth Much remains yeto be done by the Judge In this
summary proceeding The warrants yet 10 oe signed
and The return Of the second warrants, further in
quiry 30 be had and determination made to the
books, parers &c to be delivered 10 Mr. Conover
Seventh would be the aspest Of the case II the
Court in allowing the writ, had made conditional al
lowance, what is the thing since modified the al
lownnce as N make conditional The right of the So
established, far this Court at Special Term Is
cerned and ri 80 far as Judge out Of court Is
cerned. (Order Of 1lth July, ID Wend, 665-e7l)
Of this decision of the Special Term
the power TO conditional sllo exists and the
right to make at any time clear: Whenever writ is
issued the authority of the court in it attaches, and il
nay be altered and entirely set aside.
Adjourned to Friday at II A. when Judge Peabody
Is expected 10 give his decision.
THE INJUNCTION TO RESTRAIN TIE COMMON COUNCIL
FROM TRANSFERRING THE PROPERTY IN THE
kTHkET CcBAtssIONBRb OFFICE TO THE COUNSEL
Fob THE CORPORATION.
The foiIowngis copy of tho injunction served upon the
Common Council re,trainns them from transferring the
property in the street Commissioners Office the Counsel
to the Corporation
SUPREME COURT.
BnSir d. Cbuovey against the Mayor, Aldermen and
Ccmnlonohy Of the Ciy IF Neio York and Charles Deplin
Injunction ~ ordern appearing satisfactorily 10 me, by
the affidavit Of Daniel d. Connover, the plaintiff that sui
hcient grounds for order OF punctoE exist do
by order that the defendants the Mayor Aldermen aud
Ccmmoraty Of the city Of New York, and the Common
Coup I'll of the rad city, and each Board thereof and their
agents aud eervans, refrain from copc0rpg In
ing TO, or passing carrying into effect the resolution Of
the Board OF Aldermen mentioned In the com pain aud
OF which copy % thereto annexed, which resoutioa
directs the Counsel TO the Corporation ty Of
York to take possession Of al the books MAPS papers,
records and documents connected with The Office of
Street Commissioner Of the city Of New York, in sad
resolution mentioned, any other resolution resou-
tons, ordinance or act, directing permitting transfer
delivery of any books macs papers, records
mens apsertanirg belonging the said Office OF Street
Commissioner 10 any other person or persons than the
plaintiff; and that the defendant, Charles Devin, be
trained and enjoned from delivering the said books MAPS
papers and Documents any OF them, to any person
other than the plaintiff EMIL the further order OF this Curt
July l3, 1857. G. A. PEABODY.