The New York herald., 1872-11-20

pointed one OF the messengers Of the Board o
Supervisors; how ne found no dificulty in getting
his salary till Comptroller Green was placed as
guardian over the city exchequer; how on the lat
tcr's refusal to continue the payment to him or his
monthly stipend he applied to Judge mgraham, oi
the Supreme Court. for . peremptory man.
damus against the Comptroller, directing him
to pay the same how this mandamus was granted ;
how the Comptroller refused to pay him on this
mandamus; how, thereupon, motion was made o
few days since, before Judge Fancher, at Supreme
Court, Chambers, to lock the Comptroller up in
prison for his contemptuQus disregard of the man.
date Of the Court have all been fully reported in the
HERALD. The next point of interest in the matter
Is the decision OF Judge Fancher upon the motion
to punish the Comptroller for contempt. AS there
arc two other motions OF similar character PEND
ing In the Court and possibly more to follow, the
opinion OF Judge Fancher, embodying his de-
cison, Is published below In FULL
OPINION OF JUDGE FANCHER.
When this proceeding was before the presiding Justice
ns ha on a Fl
r iss as a M Of 1ns s is so %
esSsas thst the = ToStor was proper ap
,he control Of the respondents sufficient to pay the
prsea eSer I'm that state Of isets he
psre%p.ory maSdam issued under his s' order was was
o Sy the sut % e on
Ans asa the % made by The Board Of
f Ss, the
iSst Ss
s o @ sa + 81 Ssw
s 81 IL s, %
SoaSS made a any as apesrsieamsn @
as Afis the sss when n
seed ss o s Pros. r sce as q Was Is pS
not nave issued pcrcnptory writ The utmost he would
s issue o s an
%sat Gt to d n
se held o IN s reas Ok s * he
that when Board q Supervisors has AUDITED and
greater amount Unless therefore the Comptroller i
Board ns
sosh
the Board be G0%peea to the
IN the case S
low as to conform to THO justice Of the
~ Sfss
% ssS S0azi e
ss na s Ss
.ns sps Snf is # & Sss
party was ignorant when his former pleading was made
and another Sec 7D Is thpt the Court may, likewise in
Its discretion and upon sch terms be just allow
answer reply to be made other act to be donc
after the time limited by that act and may at any time
within one year alter notice thereof relieve party from
Judgment order other proceeding taken against him
through his mistake inadvertence, surprise, excuse
able neglect and may supply an omission in any pro
to allow an amendment of the proceedings
and the only remaining inquiry is whether
the anenGment will be proper and IN turtherance of JUS
tce The Comptroller Is public officer and his duties
are so important to the public welfare that he should dis
charge them promptly and with fidelity. The faithful
exercise OF the functions OF his office should not be
omitted, yet there Is reason to call upon him TO
He cannot disburse moneys unless they under his
control; nor can he nay claims that have not been
should be required to pay the claim the reator it
should appear that the claim had been properly audited
and allowed and also that there funds the hands
othe Comptroller appropriated to pay the claim Neither
Of these facts appears The reaor should establish both
both parties have been heard and there is dispute
But where there Is dispute about the facts in the
case here, 1t Is better to allow an alternative writ to
which the Comptroller may make return; and the re-
ator can demur reply to the RETURN that
may be formed and the disputed questions of fact properly
tried and determined think the justice of this will
be met y an order that the peremptory writ be amended
allegations as he deems material The Comptroller may
make return therein in ten days thereafter and within
like time the rclator may demur or plead to the return
Ordered accordingly