New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-01-12
LAV LNTELLtGENCE.

ruv cry CHAMBERLAIN COkTEsT-hR- PlATT TO Blk
COMMITTED TO JAIL.
Huron. This proceeding has been insi uted be-
fore NE under r. S., l24 s. 50, 81, So, 50, on behalf
Of Daniel Deylin, claiming 10 have been duly .sp-
n uied successor Of EssD @. Plat, as Cha nberlain
IF the City Of NewYork, TO procure the delivery OF
the books and papers appetsinnS 70 the Office, and
v biCh are in bis custody.
whenever pereon shall be removed from public Office,
or bis te % shall exIire be shall on demand deliver
over TO his all the books and papers In his
custody in any way appertaining 10 the Office, and 10
case Of neglect or refusal do such may
make application to any JuetIce OF the Supreme Court,
or First Judge Of the County where the person so
turing shall reside who upon being satisfied by proper
proofs that any eucb books or papers are withheld,
shall grant an order directing such person to show
cause within q short and reasonable time why he
should not be compelled to deliver the At the
time appointed the officer must proceed TO inquire into
the circumstance when, II the person charged shall
make oath that he has truly delivered over 70 his sue
ceesOr all such books and papers further proceedings
81 all thencefron cese But If such osth IL not made
and it appears that the books and papers are withheld
the Judge before whom the proceedings arc had, shall
by variant commit the person 30 withholding TO the
il OF the County, there to remain until he delivers
such books and papers, or Ia otherwise discharged
according 10 law
Having upon sufficient proof, granted the order to
show cause al the tine appointed the parties appeared
and the counsel for Mr. Ptt produced win Of ceriio-
raTi issued by the Supreme Cont In this District,
granted At Special Term thereof held by Mr.. Justice
Barnard, and claimed that by virtue OF the writ Ill
such powers suspended and stayed, and tins pro-
ceeding was removed into tho Supreme Court.
My answer to this was that, although entertaining
QTeh resi- ect for the tribunal from which the writ
emanated yet did not sonsider u a. Possessing Inc
81 judge Of the Court Of Common Pleas prior TO any
final determination being made OF the matter Involved
That if the witt had the effect claimed its operation
would be TO remove statutory proceeding, intended
l.. hofo "A t,hAmOer8.
into the Supreme Court at General Term-8 tribunal
ising power whatever 10 continue or complete
t. or TO give any relief to application thus removed
in is inciIieDt state.
On r, Fiction, see no reason to change the views
thus expressed. There Cannot Of ooune be doubt ~
10 tie power Of the Supreme Court TO review by the
conmon-law wrt Of ceTt.oTor the hnal adudl .tions
ard deter limitations of all Officers vested by the Legs
ature vi power TO decide upon tie property or rights
Of any citizen, who act In n summary manner or III a
new course diileien from that in common law But,
as it's legitimate ooe is to review and correct the de-
terninaons Of inferior ofces and tribunals, and not
to invest the Court with the right 10 exercise the pow
ers thus confened by statute on special offcers
aud tribunals, it necessarily follows that Is
does lot before tIial and final determination, direct
the inferior jul edction of the right to determine the
proceeding instituted before it, does it withdraw
fitm it tie question TO be tiled. AS said in Lydo ag
Noble 20 John, So, "When this eertiorori was
granted there had been order, assignment OF trial;
The mas lstrute had performed ministerial act only;
le bad administered oath, and issued summons
BY allowing cerfiorGTi, the Superior tribunal would
be assuming an original jurisdiction instead OF power
to review and correct and in that case, Woodworth
j.. in delivering the opinion OF The Court remarked;
Il have not met with any csse, where in
a civil proceeding before an inferior magistrate,
who bas express jurisdiction by statute, Il GER
tie Tors has been held to lilo TO remove The issue
question be tre6 by the magistrate 70 the Supreme
Court" and, indeed, he might have added, that &C
eorGiDg 10 the whole current of authorities from the
earliest times the present. the common law writ OF
tiolaIi never lies before Judgment Thus it IL stated
in BaCons Abr title Ceriorai 560l that ia good OBJ
lection against granting the witt that Issue Is joined
and vsire awarded for thai in the Court below, La
Rex agt Niealls (Strsnge, 1,1Sl, 1t was held that
verdict could not be removed by certioran from tho
sessions before Judgment. (See also Comyns Dig
title CeItora,iJ And in Iiaines ag Backus "a Wend,
2l3l the late Supreme Court held TO this view in
in all respects analogous 10 the present These pro-
ceedngs under the stsnte relative IN forcible entry
and detaner were instituted before County Judge,
who upon complaint made, bad issned precePt To IN
quiie into the matters in question. The parties ap
ptad but previous TO the Jury being called oeriio-
ran, removing the proceeding into the Supreme Codrt
war served upon tho Judge who thereuPon suspended
proceedings andmade return 70 the writ. On motion
TO ouash the Court, per Savage, Ch., j. held that
the certiorar clearly premature, until inquisition
found there nothing TO remove The inquisition
could be found by the Court but could 10 obtained
only in the method prescribed by the statute" (Sec
ar. s., 5l0.)
Many other cases might be cited, but 1t seems I'M
Necessary They all tend, however, to recognize the
or jurisdiction that writ Of formerly did to nfe
nor courts Of record and that in it's Office Of removing
final adudications for revision, 1t pOssesses all the
characteristics Of writ of St0nc agt Mayor Of
NY Is Wend., 167; Norwood agt. HilE1ter, Pratt,
j., 2 Selden, $40; Bridal sgt. PHILIPPE II Wend, 46S,
and cases cited
But a conclusive answer 10 the right claimed by the
Supreme Court in respect 10 proceeding IL 70 be found
in Chap. 81 Laws 1874, p 30 which declares that no
writ Of babeas corpus ceriorsri shall be allowed,
whereof any cause or proceeding may be removed be-
fore final Judgment in such cause, OF before final de-
cison in euch proceeding, from the Court Of Common
Pleas into the Superior Court eXcep! that transory
actions msy be removed, where trial ought 70 be had
elsew bele than in tie City of Eew-York. This stat
ute, however, have already tbown, wa only declar-
atory Of the existing Law, but intended evidently 10
plea the question beyond dispute.
On the argument counsel for Mr. Plat insisted that
il related only 10 proceedings in Court but when 1t is
borne in mind that ut tho time this Law enacted
the CouIt of Common Pleas existed only as Court OF
G. mmon law Jurisdiction, possessing equity powers
whatever, and therefore no night to entertain any
special proceedings Court, while on the other
hand the Judges were invested with almost innumer-
atle powe1sin special statutory proceedings, L. follows
think an an Irresistible conclusion that the law 10
have any effect whatever, must have the interprels
ton that il relates 10 all such proceedings "a by
gtatute were authorized 10 be instituted before any
Judge Of the Common Pleas. (See also 2 X. s. 3s9
gee. q II, I6l.
Believing for the reasons stated that the writ thus
served upon me, and which il seems was procured
ex-psrte and upon that ground irregular see Monroe
ag. Walker G. Cowen 3J7), and might be treated az
nDlHty (Shotwsll agt. Daniels, . John, 3i0 Grahams
PIac $751; not only improvidently Issued but un-
authorized by law. concluded TO disregard ii, and
directed the proceeding before TO continue, whore
upon il was further contended on behalf Of Mr. Platt
that o. was not the first Judge of Court Of Common
Pleas, or Of the O unity, WAS not possessed OF any
power jurisdiction in the premises. This objection
is proper 10 say not accompanied by reference
70 any statutes bearing upon the points, therefore, for
the Information Of the counsel will briefly refer 10
the authorities under which each Judge Of Court is ia