The New York herald., 1879-09-21

from further entertaining proceeding
Of September 49, 1872 and prohibiting restraining the
d ~ % aS ae at or .
% the "a Hon The r.u r. ssrss in , %
ngs tHsrson and ra plroaioitng ting and restraining the
1 or bringing 70 execution any judsmen. that may
s sr% At or S tho a .a
brook. may have such further other differ
sna a Of hs
r hand r sss. the sss.s III.
OF controversy before said Justice he has heretofore
prsessdnss ,Gsssca isr sSs
By ss az s the ss a%
may be taken TO tho General Term asPcqsgd e be 1sd in
Notary Public City and County Of New York.
ADDITIONAL AFFIDAvITs.
The foregoing affidavit relates principally to the
motion for the writ of prohibition prayed for in it.
and all the other documents which reference is
made in it have already appeared in the reports Of
previous hearings in the litigation. There was also
Submitted to the Court an affidavit OF the Mayor
having special application to the writ OF cer-
tiorari. 1t was almost identical in substance
with the foregoing. but urging as an addi-
original jurisdiction OF the cerorar proceedings,
the great importance of having the questions IN
volved determined as speedily possible, and the
fear that otherwise an appeal to this court could
not be heard in October next. An affidavit also
submitted. made by Corporation Counsel Whitney.
in which he says:-"No notice Of any application
for Judgment upon the writ Of certiorari
or the return thereto, and no notice Of
argument, hearing or trial thereof has
been given by either party other than the order to
show cause granted by Mr.. Justice Westbrook
September l6 1879; and. further that it has never
been made condition OF any stay granted to
obtained by availed of by the said Mayor that the
said Mayor or his attorney should receive short
notice of trial, or hearing argument,
cept as hereinafter stated. It appears by the
order entered ut Chambers September 8, 1879,
with submitted, days additional time to Ale re-
turn were granted upon stipulating to argue the
that such stipulation was made and that the
period of six days not avaied of accepted by>
the Mayor his attorney or counsel under that
der.
The motion was opened by Mr.. H. N. Bangs on be-
half Of Mayor Cooper. He sketched at length the
various proceedings which had come before the
Court in the litigation, and which very fully
claimed that the General Term had ample authority
to stay the action OF Judge Westbrook and that the
private interests Of Mr. Nichols should not be allowed
to interfere with the more important public in
terests. The questions ut issue were of the
gravest character, relating to the most important
speedy discrimination OF which depended the clean
liness and health OF the city and good order and
charges against Mr.. Nichols he did it because
public policy demanded that he should do so,
and this action Of the Mayor should not be per-
mitted to be overruied by single judge. who had
already expressed opinion on the merits Of the
case in favor Of tho relator. Mr.. Bangs continued
his argument ut some length on the want Of juris-
diction OH the part of Judge Westbrook-he not hold
ing special Term of record for the trial of issues
of law ana fact and was followed on the same side
by Messrs. Barlow and Knox, all claiming that the
order to show and an alternative writ Of prohi
bition SHOULD issue.
liberation and returning into court after about
hours absence, Presiding Judge Davis announced
that the Court considered the subject too important
to justify q determination of the question whether
there should be writ OF prohibition on an parte
application. and deemed 1T their duty to di-
rect the formal hearing of both sides be-
fore determining the questions involved the
application. They had come to the conclusion.
therefore, to make an order directing the Justice hold
ing special torn and the relator to show on
Thursday next why writ Of prohibition as asked
further proceedings before the special term and the
time prohibiting the Judge and the rolssor
proceedings. except that either party shall
be at liberty to give short notice Of the hearing OF
the appeals now pending at the General Term and
putting the cases the calendar at Special Term
80 that they may not be thrown beyond the October
at liberty to adjourn any motions now pending be-
fore him until determination should be reached by
the General Term on the order to show cause.
Thus tho Court thought. no hardship could arise.
THE ORDER or THE coURr.
The order entered by the Court is in full fol-
lows-
and the pPs,s sad psss ding Asre.o annexed and TN.
e and .ow oa ooSs.s &
tho said Edward Cooper such Mayor as % sforessid SAT- -.
sponaossstIe Special Torn az Chambers tho Hon Thss-
SsSo roasor show this coaI. on
Thursday. the 25th day of September inst at the
Court House, in the city and county Of New York.
ten ocissk or OFT, - soon thereafter
not be issued by this Court undcr and tho
provisions of chapter 90 Laws of 1873 and according
the Of q sS Court Ing
said or any justice presiding theroat from hear
ing and determining the questions arising upon tho
writ of ccrtiorar mentioned in the saidadavt OF Ed
Cooper filed the return to said writ OF cerorari and
% Of s d Cooper MAYOR
and from rendering any judgment thereon and
making further order in respect thereto. and
hibtng restraining the said Sidney r. Nichols from
applying to the said Special Term for any hearing or
torari and return thereto, and from carrying into
execution effect such order determine
ton And is further ordered that the said Special Term
and the said presiding thereat aud the said Sidney
r. Nichols be-, and they and each of them Is
prohibited and restrained from any and NIL
further proceedings In the matter Of said
trial, and from trying, deciding adjusting the In
form until she hearing before this General
Term under this order and tho decision OF said General
Term upon such hearing except that this order shall
not operate to restrain prevent either party from
noticing aud bringing to hearing before the Genera Term
appeal appeals pending from orders heretofore
the said proceeding tho calendar Of the October
Special Term for the hearing aud trial of issues
Of law or fact (of which short notice shall be
sufcient that the may be brought to trial
hearing without delay after tho decision of this Court
this and of said several appeals shall
operate to prevent tho said Special Term Chambers
ings from time time until the hearing aud decision
under this order. NOAH DAVIS, Presiding Judge.
THE GovERNoRs OBJECT.
Nothing else was talked of yesterday among tho