The New York herald., 1867-01-04

Term os SeveW; bqt Ne sams sas disposed OF on onsS
Under the decisions Of the Court OF Appeals In reeard
10 Police law, Fire Department and the health
las must be conceded ha. acts wn,en n any M
city OF New York will be considered local acts put
for all purposes and powers Of are 70 70 treated
acts Of general character not tn'n tne cons'na-
tional restriction above referred TO-
Personally l have endeavored, in~aocsrdance with
rs ann e %s rs rs 5y hOSnS
those restrictions app oia~s relating 10 the
business Of the city; but have been :dmon. he'd by
were erroneous aud II is my duty 10 yield thereto.
Independent OF these views r is a matter Of great
case The reator, il properly appointed is in once, he
having taken the oath of Office know of that
me . IsS q g into ss
sworn in II is true they withhold from him the books
and papers, but they are also upheld by the other
TS he sos no osn iST ssse
40 appiicasion for The books and piSrs 81 ts olds
possssa p sssS s liz Z
associates with him have equal right therefor All
such matters must hs controlled by majority Of the
beard and not by any one member Of it Besides, a
mandanus is never granted 70 enforce doubtful right
Aparty must have clear legal right 70 demand what he
asks for or II win DO refused, u wen 32s 20 Wen.,
$50; Ken, $685. For where the party has any other
specific legal remedy In the people vs. Stevens 70 Hi
that better remedy existed and that another claimed
the ONCE under color OF title. t-s s,,..sx - 49,,
n shs People ys ao Dss%an % aow F. Rep i2s i .
csb,e cases Of this kind:-First. that mandam 10
applicabe, and should not be issued where there s
second that where the fight or the applicant is clear
and unquestionable and the possession OF the books
and papss y AL ha. = Necessary 70 enable him 70 per-
direct proceeding TO obtain such books &C. under the
statute and third when the title o an applicant TO an
to is wholly frivolous and the possession the books
and papers would not give control of the Office writ Of
These rules think Consistent With the decisions ana
applicable to the present That there Is fair
ground Of dispute as TO the title to this office is apparent
from what have before stated, depending on
the validity Of the act Of the Legislature. II
that act is valid, the power Of appointment
vested In the members Of the Board the Croton Aque
Duct and in ordor 10 sustain the claim OF the reator
s necessary TO declare that act unconstitutiona and
tha. y 5oy psSess0y to enable hmm 70 discharge the
not tun msan to b. understood AZ holding that the
title 10 the Office be tried in proceeding for the
possession Of the books and paper On the contrary
cannot b. and such proceeding shoad not be resorted
70 for that purpose Nor is the writ OF mandamus any
more the appropriate remedy but that question must
be isd by quo scaan or In the mode provided for in
There are in the present case other dncuues In the
way Of obtaining the books and papers OF the Office,
which Seem 70 preclude resort TO any summary mode
70 obtain possession Of the books or Office These are
that the duties OF Board administered by three
persons OF equal authority and the union Of two at least
books and papera majority can control their custody,
and no one has right TO demand such possession II
,ns,o osnsr rch gu s,s,Csnr m 0nt ~ a;r,aiuad
add also TO the reasons above stated that IS rarely
ever proper to award mandamus in case in which II
can only he done by declaring an act OF the Legislature
unconstitutional That should be done In more solemn
mode OF adjudication upon full trial, and not an
For these reasons am OF the opinion that the appli-
cation for mandamus should be denied but without
costs. ~. 4
~.
strain the sale Of Property Seized Under
\ Execution Upon n Confession Of Judgment.
GreenWald and Others rs. Goldsmith d dL-This was
= motion by plaintiffs for permanent injunction re-
sraining defendants from selling and disposing Of
property seized by part Of the defendants under
execution issued upon confession Of judgment made
70 the defendants. asesfeEe ioe
The plantns who creditors OF the rm Of A. Gold.
smith a Co, OF Pottsville, Pa claim that that frm
the 18th OF December with the connivanoe of the firm
OF r. Goldsmith Co. Of this city, who were judgment
creditors OF Goldsmith Brothers. secretly disposed and
shipped their goods 70 this city and that upon their ar
rival here Goldsmith CO. seized the goods under an
execution issued upon confession Of Judgment This
judgment, It alleged fraudulent and gotten uI
cloak 10 hinder plaintiffs from getting the benefit OF
sundry attachments which they had taken in this
court the ground that Goldsmith Brothers were nom
residents. The defendants, X Goldsmith CO, showed
removal disposition Of their goods by Goldsmith
Brothers. that they were Judgment creditors in good
fath and that their execution was issued in protection
OF their rights. .sMNie I'D
Mr. Clarence A. Seward IN behalf of the plaintiffs
contended that attaching creditors under the recent
decision In the Court OF Appeals they had specific
en and entitled TO come and set aside pro
proceeding which, based upon fraud, hindered
and delayed them In the prosecution Of their rights
Mr. H. Cohen, on behalf OF the judgment creditors,
claimed that the decisions relied by counsel
were in cases In which process Of The court was in
force and creditors who had obtained attachments
solely on the ground OF defendant being
did have that specific lien which creditors who had
attached account Of fraud part Of their debtors
might possibly have IL also contended that plain
tins being president creditors could not into
this State and bring suit In equity 70 set aside judg
meDt obtained By resident creditors. Nf&
The Court afier hearing argument, took the papers
and reserved its decision.