The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-11-24
The Indicted Omcinls.
COURT OF OYER AND TERMiSER.
Before Hon. Judge Mullins.


Joseph r. Taylor ads. The People-The following points
were argued yesterday by Mr. Brady, on a motion TO
quash the Indictment
The defendant indicted under amended charter OF
1857 for afraud upon the city Of New York. ia this that
he being Collector of Assessments received SIS 500 of
the assessments for the Central Park omitted pay
them the Chamberlain at the time and in the
specified in the ordinances.
Point l. This being Indictment for statutory Of
fence, should contain specific avermens OF every fact
necessary to bring the alleged offence within the statute
Point 2. The statute under which this indictment is
found is the amended charter of 1857 and creates
msdemeanor for -four sFirst, evadipg violating
the charter; or, second, committing any fraud on the
city third converting OF the public property to
private USE Or fourth, permitting such conversion by
others. This indictment is for the second ground, viz,
fraud upon the city. All the allegation is that
received 500 Of his deputy collector and did pay
il Is this necessarily "a fraud the city ~ The
money may be retained by virtue Of an Injunction or for
defendants fees &C. &c The facts stated being of
necessity fraud, the indictment is defective in not
averring in what the fraud consists.
Point g. The facts stated, II proved do not show any
fraud upon the city. First the money alleged have
been paid 10 defendant did not belong the city, aud
therefore the city could not be defauded second, be
longed to the Of the property taken for the Park
and any defrauded they and not the city
Ioi,l L. There be no fraud without fasehood aud
there allegation here Of either erpresso fa sup
Presto The payment of the money does Of
itself constitute fraud Fraud and deceit
FONT Sit is averred that the money was paid
defendant Us public officer that his duty
such To receive or IT, Nor was such his duty Col,
ector Of Assessments l. The only enactment anywhere
", u
cnance Of 1857, organizing the Street Department 2
That Is confined TO streets, &c, (no laming parks
public paces and ANY other improvements directed by
ordinance Of the Common Council" 3. The public
place named in the indictment directed by the Legs
iaturc, and not BY the Common Council. And was in
respect to its assessment subject TO the act Of lS3 which
provided for special collector, and not for any public
officer. g. Even the Common Council had the power,
under section twenty eight OF the charter Of 1857 TO make
il the duty OF their officer he Collector Of Assessments
10 receive these moneys, II is not averrcd in tho indc
ment that they have done in fact have they done
so. The averment in the indictment, that II was de-
PENDANTS duty pay the money, of
conclusion Of law, aud not Of fact Such avcrment
never supplies detective ayerment Of fact nor II Is
suable
Point There is statute requiring defendant pay
TO the Chamberlain II is prescribed by ordinance only
l. Violation Of ordinance not in this case, though in
il may be, declared to be a misdemeanor. q
Defendant just liable To be indicted for not keeping
his book making his weekly returns, for retaining
the money. g. appears by statute the collector
tied TO fees mon corot There an ordinance authorizing
him TO detan for his fees There no avernent that
he does detan for his fees The that he
tans unawuily, &c., is not such ayermcnt. o. To
this indictment would make all violations Of ordi-
indictabic offence.
Point T. The ordinance requires the collector on each
Tuesday TO render account 10 the Comptroller OF his
receipts and 'ihereupon 10 ray to the Chamberlain l.
II this constitutes offence, that offence no, paying
when this account rendered. This account may
be rendered week after the receipt Of the money Yet
this indictment charges the offence to be paying
when he received the money and not when he rendered
hts Tie indictment be sustained only by
holding that when he receives the money thereuron he
must pay 6. Thus attaching the obligation 10
pay the time Of receiving the money, and not ~
the time Of rendering the weekly account O. II this In
dcimcn will lac, Il Is an ndclbic offence TO BE- ono day
behind.
Point s. The that defendant officer OF
the city Is defective.
Fot is no, averred that any legal had
been imposed which defendant had right to collect
Men ccrqot. the money would have been illegally collect
cd and the defendant personally liable he had paid II
over.
Point 10 Nor is II Sufficiently ayerred that the none
paid by Sherwood 10 defendant had been paid by any one
duly as-essed.
POM H. The Indictment AYERS that was defendants
duty 10 the money, &c. That " conclusion Of
law arising from facts, and the defect is In not setting
forth the facts whence that conclusion nows The duty
in this case flows from defendant being city officer
whose province SUCH 10 receive this money and
raw II over and that IL money belonging TO the city
All these facts which must b. averred Ia such
ner to be each one traversable
Pant IL. An act done In the exercise Of supposed
legal right canno, be felony, though contrary 70 sta
tue And " not enough 10 alegc matter which makes
probable tina, offence has been committed. Tho act
n retaining tho money BY the defendant not necessarily
illegal y just probable that he had right TO retain
\, as that he had not.
Point 49, In an indciYen, cor an offence created by
statute, y necessary tina, the defendant be brought
within all the material words Of tho statute Nothing
he taken by ntcndmcn The indictment must show what
offence IL committed by positive avermcnt IL IL not
enough that appear by Inference Nor will the aver
Point II. Therefore the Indictment should be quashcd.
Courts will quash indicment-1 If. from the facts
stated, APPEARS that indicable offence has been
mittcd. When the offence mputed Is not OF public
nature, aud a material avermcnt In wanting. Q. And
where there deficiency In the formal requisites
Of a Indictment.
Fx Judge Ednouds on the same side proceeded 10
argue the poirts, and contendei that Mr. Taylor had
right 10 retain he fccs In his hands rather than ~
into an endless litigation with the city.
The District Attorney and Mr.. Whiting followed Coz the
Mr.. maiy closed the argument FOR the defendant,
The Court reserved ts decision.