The sun. [volume] (New York [N.Y.]) 1833-1916, 1870-05-24
HENRY SMITHS UsURPATTON.

John Foley Again Declared Legally n Menu
Der of the Board OF Supcrvisors-The Po-
lice Commissioncrs' Counsellor Defending
Gross Violation of Law.
The case Of the People er rel. John Foley d1t
Henry Smith, bsng suit in the nature OF quo pdr
rdnto, to determine whether Mr.. Foley is not the
legal incumbent VI the once OF Supervisor now held
by Henry Smith, was tried yesterday before Judge
Brady. The was before tile Court not long
ago on q motion OF writ OF mandamus to compel
the Mayor to give a certificate Of appointment to
Mr.. Foley. which Judge 1ngraham denied, though he
held that Mr.. Foley legally entitled To the posi-
ton, and that the Board Of Canvassers sbould have
certified In his favor
In 1868 the Legislature passed an act declaring
that no member Of the Metropolitan Police Com
mission should be competent to hold any other Of
fec, AMI in subso qucnt passed In lsG9 they pro-
vded that all votes cast at any election for any
such member should be absolutely void.
At the last November election Walter Roche re-
eeived 6s,G9o votes for supervisorship; Henry
Smith A59s, and John Foley, 1880. The Board OF
County Canvassers gave Smith a certificate as hav-
ing received the next to the highest number OF votes
snd the Mayor Subsequently svore him into Office.
pieadings except whether Mr.. Foley presented him
self lciore the Mayor within the time required by
law, to take the oath Of Office.
Mr.. Henry Smythc, who, with John Mckeon and
". q. Bartlett appeared for Mr.. Foley. stated the
facts OF the case, renarking that the only question
was rs to the consutuuOnslity OF the law OF 1860
declaring all votes cast for Police Commissioner
void.
Mr. Folev having been called TO the witness stand
on the nth OF November, 1863 he appeared before
the Mayor and offered TO take the oath OF uoec a.
Supervisor; that the Mayor refused 70 administer
the oath. snd said that be had already appointed MT.
The plaintiff here rested his case, and Mr.. A. J.
NanderpOel. the Police COMMISSIONER counsel, Of
ered In evidence the declaration Of the County Can
anil ltR tfFa Na fHa
Mr.. smith to the position.
Mr.. MoKeon objected to the wording Of the MAYORS
certificate, and Judge Brady ruled that II should be
admitted only for the purpose Of showing that Mr..
Smith was appointed.
Mr. Nanderpoel then moveds upon those paper for
dismissal OF tne complaint on the ground that the
act prohibiting the voters OF the county from voting
for Police Commissioner as supervisor, and de
claring the votes so cast void, was In conflict with
the Constitution IL was also claimed that far as
Mr.. Foley was concerned lac had shown no right or
title whatever to the once.
Judge Brady said that he no, disposed at NH
priuS 10 decide upon the cousiitutonaliy Of act
OF the Legislature. lie thought the question ought
| to 20 to the General Term lie would Want at least
two days To render decision upon that point. His
first impressions were that the act was not uneon.
| Mr.. McKeon asked wht Their with that impl ession
the Court would not direct verdict for the rela,or
The two Judges who had heard the case had In.
mated their opinion OF the consttutonality OF the
law,
shown no title whatever, as lie had no appointment,
from the Mayor
| Mr.. Mcheon contended that II was the election
not the certificate which gave TO person the RICH,
| to an Office, quoting from Mr.. Bartletts argument
| upon this point, before Judge Ingraham. The &C
| ton OF the Mayor he claimed was merely clerical
| Ond amounted to nothiug. The votes cast for Smith
| we're void votes, and therefore Mr.. Foley by eec
tion received the highest number Of votes next to
Mr. Roche.
Judge Brady-h is my opinion that under the pro
visions OF the statute II was the duty OF the Mayor
TO appoint Mr. Smith. Reservng the question OF he
constitutonaty OF the law for future consideration
l shall direct verdict for the plaintiff, and upon the
proprety Of granting stay OF proceedings, | viii
hear counsel tomorrow morning