The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-04-09
The Alleged Frauds In the Comptroiler's
Office.


PRELIMINARY EXAMINATION OF SMITH AND PIrZPAr-
RICK CONTINUBD-CHARLEs DEvLIs ON THE STAND
MOTION TO DISCHARGE THE DEFENDANTS.
The preliminary nation OF Smith and F.zoatrck
charged with defrauding the city treasury OF vas
resumed yesterday afternoon before the Recorder
General Sessions Counsel for the prosecution recalled
Comptroller Fagg, and propounded the following quea
tons
Do you know in whose possession the bonds Of 5000
each ana the one for 600 Issued 10 Mr. Fitzpatrick,
at this sneS A. Ono Of the original IS 900 bonds the
possession of Mr. Dykeman, OF the Comptrollers Office.
As TO the other two, do you you know IN whose pos
session they are2 A. I do not
have you searched the records In your Office 10 o.
certain whether Mr.. Fitzpatrick was at any time tho
asssaee of the contract for Forty fourth street,
or any contract on that street,
Objected TO-
Counsel for the prosecution waned 70 show .ba. ths
defendants had conspred to deaud the city treasury Of
much larger sum than $40 o00
Counsel for the accused replied eloquent speech
arguing that his Honor had decided Saturday ,hA.
inquiry into the check in question nos pertinent
the issue.
The Recorder, after perusipg the affidavit upon which
the arrested decided tina. tho nvesGga
tion must be confined TO the $4,000 raud powtnstand
ing the accused parties may have derauded the eaury
of other large sums.
Charles Devn then called, and after being sworn,
O. You claim to he street Commissioner Of the city OF
New York; A. believe am.
Y Did you ever aee toat warrant before7
Upected 70, as according to his Honor ruling bad
Counsel for the prosecution II won't poison him
The Recorder sustained the objection
On the counsel for the accused calling the prosecution
Infamous,
Counsel for the prosecution reoined by saying that
there war any infamy connected with ,he affair
be tyibuted to the other side
Counsel for the prosecution offered " prove the follow
ing offer to prove that warrant dra vn by the Comp
troller and signed by the Mayor and Clerk Of The Com
mon Council under date Nov IL, 1867 for IS, 100 90,
nled up by smith OF the parties charged and made
payable to John Fitzpatrick, the ether party ohsrged
assignee into the hands OF the Witness eisher from
Fitzpatrick Smith and that either Fitzpatrick endorsed
OF authorized the witness TO- and he did end with
the OF John Fitzpatrick and that he witness,
did 70 endorse it, and that he the witness underneath
the endorsement Of Fpatrick's certified The sig
nature correct and put his and that Mr.
Devln deposited II 10 bis own credit In the Broadway
Bank.
Council for the defendants interrupted COUNSEL affirm
ing that the propositions Of the gentleman had been ruled
out and bis recital OF them, when published would only
tend to de'ame Mr. Devn in the Of the community
spiracy against Mr. Devln, aud illustration Of that
could be seen in the arrest Of the Deputy Street Oomm
sioner the other day.
Counsel for the prosecution replied by stating that his
object To meet argument which the defence would
undoubtedly employ in summipg up the cass namely,
disconnected from other charges.
His Honor overrued the ofer on the ground that tho
complainant having charged only specific offence for
$4,000 the Forty ninth street contract,
lueny the answer TO the question was not pertinent 70
the issue
Counsel for the prosecution desired have this ques-
ton placed on the record which he put 70 Mr. Flag, and
which overruled.
Q. Had Mr.. Fitzpatrick, either on his account
assignee, ut any time any contracts for sewers ON
Forty fourth street. the assignment OF any claims for
any moneys usder any contract for sewers IN Forty
fourth street2
Counsel fer the accused then moved dismiss the
PAINT against Smith and Fitzpatrick The prosecution, be
said, bound 10 show that there agreement
between Smith and Fitzpatrick TO eecuae this fraud In
more overt acts committed by them either OF them, or
person In pursuance OF their authority for the pur
Of fcorsummatng this conspiracy. There evi
dence 10 chow that the defendants conspred together To
deiaud the city treasury, there testimony 70
SHOW any overt act the part OF either OF them 70 obtain
the $40 900 In question frsudueuy. Counsel affirmed
that under the charter passed 14th OF April Mr. Fagg
vas just m abe 10 be indicted for crime any person
connected with this Every fsrhing that had oeep
drawn from the city treasury had been drawn In open
violation OF the law. The conclusion OF the second
section Of the above charter which created the Finance
Department contained these words-"Al moneys drawn
pesdtsse thsveof examined and allowed by tho Auditor
and approved by the Com ptroler and osd once"
Counsel said the evidence showed that Mr. FlAxg ssued
warrants on the mere statement OF Mr. Smith
Counsel Tor the prosecution replied, maintaining that
there was abundant inferoptal proof of the oonep-
racy between Smith and Fitzpatrick. Fitzpatrick knew
when Branngan went 10 get money the Forty
ninth street contract what due n him, aud smith
lore the "2" unless he knew the fraudulent
would 20 into the bands OF Fitzpatrick. Although
there might not be evidence enough 70 convict the de-
fendants yet there sufficient 10 hold them 10 await
the action Of the Grand jury and have their innocence or
guilt determined by q jury.
AT the conclusion Of the gentcman's argument ha
Honor adjourned the further hearing Of the until
Friday, al O'Clock.