The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1864-07-20

~ 0DxA ~ Nv
The Tax Com missioners' MIDDLE.
COURT OF COMMON PLEAs-cHAhBERs-
Before Judge Brady.
WILLIAMSON TO Bx RKm ANpsp TILL Or THE BOOKS
THE OFFICE
july 10 The following Is the opinion Of The Judge in
the case
In the matter OF the application OF Amor williamson
TO be discharged on habeas corpus
BRADY, J.-Jonathan W. Allen, George H. Purser and
Christian Woodruff applied to Justice Barnard for an
order against the relator and josiah W Brown 20 snow
cause why they should be compelled to deliver TO the
former all books, papers ana vouchers appertaniug W
the Office Of Commissioners OF Taxes aud Assessments Tor
the city and county OF New York The order was predl.
Gated on the claim app icans had been duly ap
pointed Commissioners and therefore entitled
TO the possession OF the books aud papers mentioned
Justice Barnard, as the result o. tne spp.cauon. -
sued his warrant the 4th OF June 1864 TO the Soern
committing Brown and Williamson TO the jail OF the CITY
and county Of New York there to remain until they and
each OF them delivered TO Allen Purser and woodruff the
said books papers and Vouchers or should otherwise DO
discharged according to law. Tho proceedings had be-
were reviewed upon cersioras by the general term Of
this district and affirmed. On the 18th OF June Brown
and Williamson sued out writ Of error 70 the Court OF
Appeals, and obtained from Judge Davies an allowance
thereof and order staying proceedings on the appca
ton mentioned On the Goth Of following the reator
was arrested on the warrant Of Justice Barnard AID now
asks to be discharged two reasonsfrst
that the process OF commitment valid because the
books, papers and vouchers not specifically named
and even though tho process be valid the
writ Of error and the order OF Judge Dawes stayed all
proceedings upon It, II either OF these propositions can
DO maintained the reator ia 10 judgment entitled TO
his discharge In Wow OF tho conclusions, however az
which have arrived in this matter II y not necessary
at the consideration OF the grounds taken BY the
reaor The statute which provides the remedy enforced
by the newly appointed Commissioners is summary 10 its
operation and elect and only 10 be resored TO IN cases
where the claimants have clear prid acie title to the
office. That they have, has been determined by Justice
Barnard and by the General Term OF the Supreme Court
Of ts district and must therefore be considered as res
adud.catd 30 iar as II Affects TINS matter wnele tne
of the Jurisdiction Of Sustice OF The Supreme Court
to compel delivery Of the books and papers ap
pertaining TO such Office. On reference 70 the statute
find that the application provided Ia generally for
the books and papers, and not specifically for the books
and papers be named the warrant authorized
when the respondent oms make the oath to the de-
livery Of the books and papers generally for such books
and papers and not specifically Tor books and papers be
named The duty OF ascerainng what are the books and
payers, how many. and by what name or names knownn
is not imposed upon the officer to whom the application Is
made the contrary the respondent Is invested with
the power to determine that for himself and for all parties
in the first instance. The inquiry which precedes the
more particularly not exclusively to the title OF the
Office, the books and papers appertaninR to which
are part OF the franchise ITSELF When books
and papers are brought in upon the authority
to search, contained in the warrant, 1t then
becomes the duty Of the officer to inquire whether they
belong to the office or not. The commitment, until the
books and papers delivered is general, have
seem but it is justified by the peculiar nature OF the
proceedings and the relation OF the respondent the
public and claimant The respondent knows what are
the books and papers, while the claimant cannot be
expected TO know them: and unless some issue is pre-
scented by the former in reference to hem that the
question as TO their number names, or character or
identity may be determined, the respondent has no
to object the general character OF the commit
ment the respect named The reator here does
not complain that there Is any ambiguity about the
act to be performed by him, but chiefly that by the
form of the warrant the Sheriff vested with judicial
determine whether the act Is done or not The
by it, the provisions the statute governing it, and the
practice in analogous cases dispe the suggestion men,
toned The relator knows what ne is to do and his re-
fusal 10 do II makes him guilty OF quasi contempt ne
not only knows what TO do but the presumption must be
knows better than any other person He is not
called upon to part with any individual property The
books and papers his They not only belong TO
Office but which he has ceased TO hold 30 far as
their possession is concerned, and In committing him
until he does the act to be performed was not an unaw
full invasion OF any right II Is analogous to proceedings
by attachment for contempt in which party 10 COM
ntted until he does act OF which the Sheriff. by the
process must necessarily be the witness recipient
(sec Rev Stat $685. The People Rogers page 103
Barbours Oh. Pr, vol. l2o) have no doubt either
that the reator ION delivering books and papers accom-
panied by affidavit that they all that belong TO the
Office in question, the sheriff would be bound to discharge
him. barbour, Ch Pr Rep l, vol l31 Anon, mad Rep
1907 The latter is not invested with the power TO hold him
a moment beyond tina. time II he can detain him 10
could also do where the books and papers specific
ally named until he had proof that their identity
not to be doubted. lbe defendant, II he suffer- however
the inconvenience resulting from such Incidents bears
the burden OF his disobedience, and cannot with
propriety complain II he be compelled to apply for relief
on proper allegation that he has complied with the law
II will be found also that general observance Of the
statutory requirements similar applications character
ICES all tho reported and il may be said that
dent establishes the form adopted by the Supreme Court
10 this matter In the matter Of Baker, IL How, Pr
Rep. AIS. In the matter OF Whiting, 2 Barbour,
the matter ' 9; Bartlett. How ia Heg People s Vs.
stevens, Hill 63l. am aware that Dgraham in the
matter Of Devln, Abbot. Pr, Rep sol, has expressed
Mr. Devn was not granted for that and although
entertain for the opinions of that learned Judge the
most profound respect, do not with him 10 his
views OF the question discussed In addition this the
Supreme Court have passed upon the proprety OF tho
commitment in scope and phraseoiogy The warrant
part Of the to the certorar and part the
proceedings OF Justice Barnard which affirmed II
that nothing is said the opinion of Justice
Leonard upon the question under consideration, but
that does not affect the fact that the proceedings Of
Justice Barnard, OF which the warrant was a part,
affirmed For these reasons l think the irst
proposition OF the reator cannot be maintained.
By section 323 OF the Code writs OF they have
heretofore existed In civil actions are abolished and the
only mode OF reviewing judgment order in civil
action shall be that described title eleven of the CODE
section hreehundred and thirty three provides that
appeal may be taken the Appeals in
mentioned In section eleven and section eleven provides
TO review upon appeal every actual determination made
at general term OF the Supreme Court Sin a FINAL
order affecting substantial right made special pro-
ceedugo II was conceded on the OF this
ter that the proceedings before Justice Parnard
special within the purview OF the Code The Code
has left no doubt the subject "An action (section
one Is an ordinary proceeding IN court OF usce by
which party prosecrtes another party for the
protection right the redress or prevention
of a wrong or the punishment OF public offence. - and
tsecon - every other remedy is special proceeding
Cy actions (secton 12I in the courts Of record Of this
state shall be commenced BY the service Of srmmons'
andas we know special proceedings Instituted
particular mode prescribed by the creating them
The Court OF Appeas as we have seem has jurisdiction
appeal TO revisw any final order made In such pro.
ceedpg affecting substantial right but section All excerpts
from the operation OF the second part the Code
proceedings named, and any special statutory remedy
not heretofore obtained by action" and the reator,
thinks that this general exemption embraces the pro-
ceedngs had against him, and renccrsthe OF
the only mode OF presenting appeal from the Judgment
OF the supreme Court therein. Upon examination
ever OF the cases in which section II has received
deratou and judicial construction In the Court Of Ap.
peals, several OF which not referred TO the
argument, no doubt Is lot IN my mind that the pro.
csedngs 70 compel the delivery OF books and papers is
one IN which the judgment Us 10 DO reviewed appeal
under the Code. In BENJAMIN VS.. Benjamin, ! SeIden,
3s3, the Court OF Appeals entertained appeal from
the Judgment OF the Supreme Court upon certiorari