The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-01-12
THE CITY CHAMBERLAIN FIGHT,
Common Pleas-SPecial Torn.
Before Hon. Henry Hilton.

Before Hon. Henry Hilton.
IN THE NATTER or THE APPLICATION or DANIEL
pEvLIN va. NATHAN O. PLArT-TaK CITY CHAM
pEELAH coNrEsr-MR. rLArT TO BE coAAirrkD
TO JAIL.
Hrfron This proceeding has besn instituted before
me under X g., l24, g. 50, 81, so, So, on behalf OF
Daniel Devln claiming TO have been duly appointed sue
OF Nathan c. Plat Chamberlano " the city OF
New York TO procure the delivery Of the books and pa
pcrs appertaning to the Office and which aren his Gus
tody The sections OF the statutes referred TO- provde
That whenever person shall be removed from public
Office his term shall expire he SHALL demand, de-
liver over his all the books and papers in his
custody any way apperainng to the office, and 10 case
OF neglect refusal TO do such successor may make
application TO any Justice OF tho supreme Court, or
nrst Judge Of tho county where tho person so re-
fusing shall reside who, upon being satisfied by proper
proofs that any books or papers are withheld shall
short and reasonable time, why he should not be
pelIed 70 deliver the Al tho time appoioted the
officer must proceed 10 inquire INTO the or ;unsancs,
when II the person charged shall make oath that he has
truly delivered 10 his successor all such books and
papers further proceedings shall tnencefrom But
ii such oath not made aud II appears that the books
papers WITHHELD the Judge before whom the pro-
SO whhodne 10 tho Jail Of the county there
until he delivers such books and papers or IS other
edischarged according % law Having upon snlncens
ed tho parties appeared aud the counsel for Mr.
Ptt produced writ Of cerosar issaed by tho supreme
held by Mr. Justice Barnard aud claimed that by virde
Of the writ all such powers we're suspended and
Supreme a Court Ny answer to thus was, sha. al
though entertaining great respect Tor me .ribu'
nal which the writ emanated yet did not con-
slider possessing the power TO arrest proceeding
thus instituted before me as Judge Of tho Court OF Com
Pleas prior TO any final determination being male Of
tho matter involved that II the writ had tho effect
claimed, its operation would BE- 10 remove statutory
proceeding, intended TO be summary, before Judge sit
ting IL Chambers, into the supreme 0rt at general
terIia tribunal possessing power whatever 10 con
tnue complete IT, to give any relief to an appica
ton thus removed In its ncpient state On reflection
see no REASON to change the thus expressed There
cannot course, be doubt as 70 e power OF the Sn
uene Court to review by the law writ OF
t.ar the final adjudications and denominations OF NIL
officers vested by the Legislature with power 70 decide
upon the property or rights Of any citizen who aci ~
i'll common law. But rs lis legitimate Office Is 70 review
and correct the d. cisons and determinations Of inferior
officers tribunals not 10 invest The Court with the
right the powers thus conferred by statute
special officers and tribunals, Il necessarily follows
that it does not, before trial and hnal dctcrmina
tion direct the infer jurisdiction Of the right to
determine the pro ,eedng Instituted before IT, nor does
withdraw from II the question TO be tired As said in
Lyde vs. Noble go John s3 whea this certiorari
granted there hsd been no order, assignment or trial.
The magistrate had performed ministerial act only no
had administered oath and issued a summons BY
allowing certiorar the superior tribunal would be as
Stunning original jurisdiction instead OF power to re
view and correct; and In that case, woodworth, IN
delivering the opinion OF the Court, remarked ~ have
met with any case where, IN civil proceeding be-
fore interior magistrate who has express Jurisdiction
by statute ceTtiCrar has been held 10 lie ~ remove
the issue or question 10 DO tried by the msgstrste 70
tho supreme Court and indeed, be might have aided,
that according to the whole current OF authorities from tho
earliest times TO tho present tho common law writ OF
certiorar lies before judgment Thus IL 10 stated
lection against granting the writ that issue Is joined
and venire awarded for trial 10 tho oour, below:
that verde. could mol DO removed BY cor,orari from
the Sessions before judgment (Sce also Comyns Dig.
2is) the late supreme Court held this view in
al respects analogous to the present Thcsc proceedings
urdy the statute relative 10 feicioe entry and detaner
were instituted before county judge, Who upon
plant made, had issued prccept to inquire into tbs
matters In ion The parties appeared but previous
to the jury being called cetiorari removing the pro-
ceeding into the Supreme Court was served upon the
Judge who hereupon suspended proceedings and made
return to tho writ motion TO quash, he Court par
Savage Chief Justce held shat the ceftorari clear
iy premature until nquson found there was nothing to
remove. The nquisition could not be found by the
| Court but could be obtained only in the method
prescribed by the statute" lSec. r. B., bl0)
Many other might be cited, but
sary. They all tend, however TO recognise the writ
performing the Office Inferior tribunals juris.
dctcn that writ of formerly did TO inferior courts
Of record; and that in Its Office Of removing final ijddi
cations for revision possesses al the characteristics OF
writ Of error (sone Mayor Of New York 25 wend
Blrdsal vs. Philips, II wend 4es and cases citesl)
But conclusive answer 10 the right claimed by the su
peme Court in respect to proceeding Is 70 be found In
chapter 90 LAWS 1874 page 80, which declares that no
writ of habcas corpus, oertiorari shall BIO allowed,
whereof or proceeding may be removed before
final Judgment in such cause, or before final decision
in such proceeding from the Court OF Common Pleas into
the Supreme Court excep, that anstory actions DO
removed where trial ought DO had elsewhere than IN
the city of New York This statute became, have
already shown, only decaratory Of the existing law,
but intended evidently 10 place the question beyond
dispute. On the argument, counsel for Mr.. Plait
insisted that 1t related only 10 proceedings In
court but when is borne in und that Mt the time this
law enacted the Court of Common Pleas existed only
court Of common law jurisdiction, possessing
equity powers whatever and therefore right 10 enter
tain any special proceedings court while the other
hand the judges invested with almost nnumerane
powers la special statutory proceed ngs, IL follows, |
think irresistible CONFUSION that the law 10 have
any effect whatever must hayeibc pterp citation that
relates TO all such proceedings as by statute were aatho
Ized TO be instituted before any Judge Of the Common
Pleas. (See also 2 r. s. $3.50 SECS 2, Ii, 10 Believing
for the stated That the writ thus served upon me-
and which was procured cx parte ant upon that
ground irregular soe Monroe vs.. walker towen, 1911,
and might BE- treated nuity (Shotwei va Daniels,
John, $40 Crahams Prac. $500, was not ony mprovi
dcntv issued but Unauthorized by law coacluicd to
disregard It. and direct the proceeding before me to
continue, wbeleupOn further ooniended behalf
Of Mr. a,t that as was not the Ist Judge OF the Court
Of Cmmoo Pleas or Of the county possessed
power jurisdiction IN the prem ses. This objection,
Is proper 90 was not accompanied by rceroncc
AIRY statutes bearing upon tho points therefore for The
information Of the counsel win briefly refer 10 tho
horit.s under which each Judge Of the court is invested
with all the powers Of the FIRST Judge OF this county and
can ACT as such Ia any statutory proceeding which may
be nstuted before such officer. believe " will be
ed that the pr, sent Court Of Common Pleas may
date its origin Tar beyond TINT Of any udicl tribunal Ia
this state Beginning under The rule OF Governor stuyve
SAINT in 1908, was known us the Court OF burgomnsers
and sshepeDs see history OF the Court by Judge DAY.
! T. H. smith, X. XNlV); with several changes,
particularly respecting It's jurisdiction; continued until
tbs butch formally surrendered the colony New Meth
erland 10 the Lgsh; when in 1874 1t convened
the Mayors Court, and thus though not without many
alterations in its pJwers &c IL remained dowa 10 1921
(sce Laws p 6l), when changed 10 that OF 'the
Court Of Comu Pleas County Court Of tho
city and county of New York. and first Judge
was authorized TO bo appointed to preside In
II. In 1894 associate Judge was added (sec
laws, CHI iIe) and 1899 (see Laws, CHI. lle),
another each possessing however, all the powers and
Jurisdictions e the fret Judge In suit proceeding
The constitution OF ls46 IN rcorganizng the judi
cal power OF The state did not interfere with the court
thus consuted but the contrary, by Art IA, L.
expressly declared that u should remain with Its then
row and Jurisdictions until other directed by the
legislature and the Judges thereof should continue w
once until tho expiration of their terms until ths To-
gsature should otherwise direct In 1S47 (see laws
.ss) the Legislature provided for the election Of three
Judges OF the court who 10 elect II their
her b. the rs Judge declared that the Judges
elected should have and the and
form tho duties that the first and assistant Judges
then ppe.capei had and performed. Language plain