New-York tribune., 1870-05-24
LOCAL MISCELLANY.
THE CONTEST FOR THE SUPERV1SORSHlP'
VERDICT FOR MR.. FOLEY.

THE CONTEST FOR THE SUPEk'loOhohr'
A VERDICT FOR MR.. FOLEY.
The case of the People, on the relation OF
Jobn Foley against Henry Smith, was tried yesterday
morning before Judge Brady and jury, In Part oi
tho Supreme Court Circuit In November last MI Foioy
and Mr. Henry Smith, the latter then and now Police
Commissioner candidates for the ohice OF super
visor Mr. Smith was declared elected by the Board OF
superysors organized Board OF Canvassers, ana 70
ceiyed from the Mayor certificate to the ofhce MI.
Foley believing that under the act OF the Legislature
passed during the Winter Of 81 and declaring that no
member Of the Metropolitan Police Commission should Dc
competent hold any other office at the time ne held tna
of Police C0mssisner and in subsequent act thas al
ves cast for one of those gentlemen should be vod ap
n,ied for the certificate of election from the Mayor
which was refused he having already given 1t to Mr..
Smith, Mr. Foley then applied to Judge Ingraham for
peremptOry mandamus directing the Mayor to give MIN
the certificate Judge declined to issue the wrt
holding that Mr.. Foley entitled to certlcate rom
the Canyassers hut that II was tnexpedlent tnat no
should take the Office leaving the other question, lncnd
that Of the OF H the as PPSst o
lice Commissioner TO be decided In the proceedings
Mr. Foley was represented yesterday by Mr. smythe
Mr.. John McKeon, and Mr. Willard o. Bartlett Mr..
and Rufus F Andrews aRpessas ns iDr the
peadngs except the fact that M Foley on the sth
@ OF 10 sRs the os M Foley
on the stand and testified that he did 80 do
MT. NanuerpOe then oucicu III
of the County Canyassers and the record Of appointment
OF Mr. Smith by the Mayor. The certificate OF the
Canvassers shows the whole number OF votes 20 nave
been 4O5 which Walter Roche received 63 6U MI.
Smith 81 $685. Mr.. Foley IL $780, and Jacob Cohen 36s
Mr. smythe objected to the certificate signed by the
Mayor forming no portion OF the record. ine law
provided that the highest number OF votes should elect
and person receiving the second highest number OF
legal votes should be appointed and the action OF tns
Mayor merely clerical one. MIR. VanuerpOel salu
they were admitted to show the declarations VI the
County Canvasers served upon the Mayor upon those
papers the Mayor issuing the certificate TO Mr smtn
Judge Brady held that the certificate was admissible.
Mr. Vanderpoe then moved for dimissa OF the com.
plant and judgment for the defendant He said that
the subject involved In this proceeding had recently
been before another branch OF the Court on an appca
ton for mandamus. At that time they had raised the
question which they also raised here with Others that
the act prohibited the voters Of the county from voting
for Mr. Smith, declaring that the votes given for him
any Police Commissioner would be void or IN con-
fct with the Constitution. They also objected that SO
Mr. Foley s concerned he has shown no r1ght OF
title whatever to the Office Mr. VanderpOel then read
the opinion Of the Corporation Counsel on the consttu
tonalty OF the restriction placed upon the Police Com
mssioners in which he held the act unconstitutional
on whose opinion the granted the certi
cate Of election to Mr. Smith. Until the certificate Is
given by the Mayor Mr. Foley Is not entitled TO appear
as reatOr.
Judge Brady. after further argument denied the mo-
tOn said that he would want two days to decide on
that it was constitutional, and he would direct
verdict the plaintiff the exception to be heard at the
General Term 1t is opinion he said that It Is
duty of the Mayor to appoint Mr. Smith TO the ofce
and Of course reservng the right the constutOnay
Of the law for further consideration, shall direct YER
dict for the plaintiff
Mr. Vanderpoel made motion for stay Of proceed
ings, which will be heard this morning at 10 O'clock