New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-06-03
LAW INTELLIGENCE.
FLAGG act. SMITH AND FITZPATRICK.

FLAGG sgt. SMITH AND FITZPATRICK.
RECORDERS oFFICE-Jrsr a-Besore Recorder BARNARD.
Recorder Barnard yesterday delivered the following
charge in the important case of Controller Flsgg sst
James B. Smith and John Fitzpatrick, on the charge
of defrsudipg the city treasury Of $loooo The tee,
timony taken az the examination is fresh IN the mind
Of the public but the Recorders decision VIII eluci-
date il still further:
Tb. PsopIe &C. ast James B. Smith and John FspstheI
The defendants were brought before me for pre:ni-
nary examination charge Of eor'psey 10 deirsHd the city
To understand the Allegations made BY the prosecution
certain work and MAKE: payment ihersS VII se s ,
NewYo uch paving regulating aasns setting curb and
gutter building sewers the C",'rtlon enter: mo con
sum The contract price with sundry incidents. expenses are
assessed the property benefited by the work to be done and
At the tine when the & ,S '1 - s .sa to Ss ceS
olrs oce and abstract taken from then and entered
title Of the assessment of the contractor the amount Of
the eonct the of the inspector and bis ices the name Of
ana collecting the footing up the OF the collector aud me
date Of the eSnfImsOn Upon this abstract OF %s
ordnance In existence allowing advances 70 % mace
.Dhy ss uUs % on Jos over on the
from the time of the making thereof till the end OF the eentA
hi:
The sssed eoapssy has ,sOn sIui,' %, paving
share orisna contractor assigned
Tn. manner in which is alleged the thought
accomplish their Pupo.e was that the defendant smith men De-
Ing employed IN the Cortroeis office aud being charged with
the duy OF makps the abstracts from the sssemsnt rolls aud
entering the book should in the abstract OF this Forty
pr tn street paving inert the figure between the
sign s al fsur,s s3 TO- to make the s@oqnt
OF The contract Prse req 3D. H.. ..,.nsn, taken
it, show the contract price to BE- sl2 IT, 70 the Con
In stdsr sustain the eh.rse Of conspiracy necessary tina,
two should be- engaged or coneene
or connected tsehet u an endavGI 70 eV, Sous
be eoncu,yey proved that one h endeaSoeu 20
m uH WV ermnal, connected with endeevOr
Now In thi. case granting to be already shown that defend.
intent Of deraadns City Of 500 yet that
done 70, the purpose e III. oeon
sscy could ret be sustained against either the
although another and sver charge might Dc AGAIN" 'ne
Il becom.s therefore, msfe, inquiry TO whether defend
The oby evidence for tie branch
is FnzT the assignee OF the contract and cons
qutDy knew It's amount that on certain DAY ae receea'
through his sgsn the Controller two bonds tor S5sc escb
Of and check for Is H. The eneet on
tract that his agent Brangsn who received these bonds ana
smith,. Handwriting, and .apesed b. in payment for
the Forty nnth street contract .,,
ether with the CoIp.on and bad no MONEY! sS
him from other contracts ana using IN. oouas
and check would been .roDg evidence OF his having been
vy TO the Interpolation and Of its having been done with HE
But the mo.ecuer witnesses show defendant Fitzpatrick
wa. ntestsd In various other conrac aud that there
due him at this time from the city :. least So Co
That on the Goth day November 1857 the following order
BY tie Supreme Court in the matter OF the bo"ery
"A. Special Term of the Supreme Court Of the State Of
EewYo the CITY Hall in the &C. CITY Of Nsw SS,s w SH
CIrRxE Justice In the matter of the Bowery Bank;
up reading and filing the petition Of John , ,
ting th that the Of certain contract maze III tn
ytsr 1854 BY ouin with the Mayor Aldermen and
fGT IsSs o the Thd and Filth
Cry Also Of certain other contIac made in Ausas 1856 BY
ps and trading Fifty second street Om Fourth
tbe Fat River Also Of certain other contrast made IN P
&c. setting curb and gutter and tagging the Fourth avenue
from s to to s ,sSr 3 between s John Nee
ban and the said Tie Mayer &c d Sr ,as
That the .ad several contracts were heretofore assigned TO-
Jam advances made which have been made thereon
That about the of December last an accounting
was had between the said Bowey Bank and the said Charles
Deyn relation all uch advances upon which accounting
that 81 made on ssS'o az III s a
made and the still stand in the anne OF ne sHd bowe
Bar praying that order might be entered difecng Jonn
Stuart The Receiver Of said Bank assign release 70 the
,ad petitions the said several contracts or any appren lien or
claim which be might have therein
And upon reading filing order made the 18th day
q ISL ,sS0 the a as., dave va, e psy.
the said petitioner should not be granted and tae SAID He
% tn he
work done by john Quinn upon the contract fo REFUSING d
and also that tie petitioner Fitzpatrick Indebted to said
Bank in the OF two thousand dollars or h.rssooa. and ha
such amounts Now, motion Of Mr. stilwe counsel t9t
sue petitioner after hearing Mr. Ssscn of eounse for the said
IL ordered upon depositns with the ,a'd ne
certificate OF deposit ia sad bsnk iof seven
as G sn Ds n or claim which the said Bsai or
sold Receiver may have upon SAID contracts tne fslq
OF said several due or 70 grow due thereon
And it's further ordered, that 1t b. referred 70 jas ofrn
ESQ referee 10 take testimony examine and report wha1
snoon LEMON work done upon the contract for
and
Quinn, deesse or his 'en John 9aS 1 pOr Ine
the said examine and report what any amount is
the raid Bank from the said petitioner and whss scu
tbs S Court with al RICHARD B. CONNOLLY Clerk"
That "a Brnisan a. the when be M at the Controcrs
Office tie order from Fitzpatrick on which tne niee oo t .
sh.t sHys . aI Supreme Coa.
Bsn that he isquenty received ehses and o,nGs
cor SEQUENCE Of frequency If sh he cannot
sse any the particulars Of this one Ina.
street that hs for specific money tia, b.
presume. the envsaon which ssot place on .os odson
was pot him Smith which 70 ass hin Whether there
.9 eSSD S' on
Fitzps.rck bad but he has no distinct ecoLseeh o. .h
be- ued bot sped 1t at direction Of Smith supoosns to
be ali correct but did not know ts contents AND nss
from ,h. nsw.pste .bout weeks before his
that be did Smith make out the me@orAnon '' 'Ae
n 70 b obs. wed thai bonds do not show on wh.. .e
count they Ssd sso that the bond to ~ T me
,tr,.t contract and on account OF tins coz
have 10 hi. dsy In the book containing the so
s,Isct Of the sssessmept rolls . .xor.. NJ. 49,,
I, voud also the evidence OF Controller lag tnAt
thse two e5Co0 BOMBS have since been cnAsea tnn III
p.rk payment Of the contrasts msuo"ned 10 the Su
trtne Celrt order. p....,x,et s.,;,. h..r
-, concerned In the original interpolation, Of his
Is,inS AZ sny Of such aerion hayins been
sSe Bot This fact thought 70 be made OUT oy proof Of eu
LTD and conspiracy almost Invariably be proved BY cir
Ia
1o.y. proof But IL essential that The cfcaHstances eued
IN ,usn the freud conspiracy shosd TO moral certainly
scusy exclude every hypotbess bot TIE one proposed Dc
troyed. (Stzrk on Ey., vol !, 57A) :.
Tiipf the facts and circumstances proved this case @