The New York herald., 1879-09-26
WRIT OR NO WRIT.
The Nichols Case Before the Extraordinary
Session OF the Supreme Court.
JUDGE WEsTBROOK EXPLAINS
A Decision OF the Court EX-
pected on Monday.

missioner Sidney L. Nichols. held session Tor that
purpose yesterday. Presiding Judge Davis and
Judges Brady and Barrett occupying the bench. As
already stated in the HERALD the matter
came up on order sued ont by Mayor
Cooper. and granted by the General Term.
directing Sidney p. Nichols. the reator and
Judge Westbrook. before whom the relator's
was pending, to show why writ of prohib
ton should not against all further proceedings
in the matter before Judge Westbrook any other
Judge sitting at Special Term, at Chambers. There
appeared in court not only strong representation
of counsel the respective sides OF the ISSUE but
Also q considerable audience, composed Of well
known citizens and leading politicians interested in
The result AS on the previous occasion, Mayor
Cooper was represented by Corporation Counsel
Whitney and Messrs. +. N. Bangs and Henry E.
Knox Ou the part of Mr.. Nichols there appeared
Mr.. John d. Townsend and his partner, Mr.. Weed,
and Mr.. William Allen Butler
JUDGE wEsTBnooK's STATEMENT.
Proceedings in the opened by Mr.. Tim
othy c. Cronin. who appeared to represent Judge
westbrook. He read to the Court q statement writ
ten in the Judges own hand. setting forth his
ton in the litigation follows:-
To THE GENERAL TERN OF THE SUPREME CoURr FOR THE
bees served WITH tho order to- show cnss y IL
the above proceeding deem to be duty to eommuni
the
% as the % hs 18th ade sas 10 ena
you the better to the questions to be Sub
sa. and Special Term an OK parss application WAS made
Of the state and to the Mayor Of the city Of New York to
sssm ,s ss % sss % Mr. sS fs
examined the submitted and refused the pare
Notice. for the
writ was given TO the oysnor the Mayor and to the
DAY Of june last all the questions which this proceeding
by nv G by the ~
tor the ~ and by Mr. Harrison for the Mayor A
ss n " OF my at the
decide the motion time come, but
e.u would % %sarsy ssd
about July 1879. and Immediately thereafter l com.
had been reserved taking them according the dates
s % in sns, as BY me % IN
writ to the Mayor alone ard not to the Governor. For the
my opinion copy Of which hereto attached when the
denial the had every for
the continuance OF the proceeding in the Third dis
? Special Term Of the, supreme Court, ;, %
York. il the rules Of the Court had prevented
10 sSSpPosed return % OF ne " wrt and
dsrtd at the Special Term would have directed
by dssgnstion made long before this proceeding Was
Initiated if be held elsewhere during septe,.
was made to at Special Term in Chambers to
ss a1 70 ss the Of 5s a sp
ns the 5aST re-
the questions involved and such decision should not De
would present every question An implication was then
on on the t.h Of inst made to the General Term Of
stay. This was also denied and order to that effect
motion for Special Term to be held in schenee
aassh the writ ON these papers Judge ingalls, granted
stay of all proceedings until the hearing and decision OF
why JUDGE INGALLS, ORDER WAS VACATED
granted by Brother ingalls, My reasons
ssa, are & gvsa s III a" & copy OF %n
~ "a % and 20 OF the first printed pamphlet in the
Term. order to show restrain the making
Of the mo,oa az SCHENECTADY TO Saash was denied BE-
for the tribunal 10 which the motion made do.
made in schonectady was abandoned. and though
the taken an.bs 5Sm y my sss
doned motion to be made, Judge Davis stayed all
on Friday last at special Term made
s s stay aS OF Of uad sa ops ba be
postponed to Monday last but no action was taken therein
ehcerfully obeyed. An order TO show why Mr..
made by me- on Monday last In granting such
order had not overlooked rule A Of this which
Is made by such rule may be brought to- hearing by
Term certainly have OF intimated in any way that
such rule does not control the practice in bringing the
case To argument
This, Mr.. Cronin said as he concluded the reading
OF the foregoing statement, all the part he in
tended to take in the proceeding and he would
that none OF the other counsel in the could
have had any knowledge of the statement he SUBJ
mitted until they heard 1t read in court.
Argument on the case, of which the leading points
are gwen was then proceeded with and was in part
necessarily repetition of arguments previously
made III the course of the litigation.
POINTS MAYOR.
On behalf of the Mayor, anG with "A view to sustain
the motion for writ OF prohibition absolute against
the hearing or the certiorari by judge ut Cham
bers, Mr. f. n. Bangs argued that on the face of the
writ. it appeared to be a process which the Court
issuing 1t had no authority jurisdiction to ISSUE
and the defects apparent on the face of tho
writ were not helped by anything appearing in the
return. The Mayor protested against the jur.sdc-
tion. He has asserted that the record aud history
OF his proceedings were sent to the Governor where
they still remain. They clearly could not be in two
places at They could not at the same
time be in this Court and the Executive Chamber,
and the COURT could have no jurisdiction Of
them upon hearsay statement of their contents
emanating from person having custody of
them. The Mayors return was conclusive. and the
Court, upon this hearing, must assume that the
whole case is stated in the return. On that
sumption there was no evidence that Mr.. Nichols
had been removed from office. IL the Court ut
liberty, he coutended it not, to look into the
papers used on the original application for GER
torar the objections to the jurisdiction which APP
pear on the face OF the writ and the return fnd
no answer i'll those papers. 1t appeared by
the Mayors affidavit that such record there
had passed out of his custody and in another
jurisdiction On that showing certorari TO him
could bring up nothing but hearsay. In short, he
was beyond the reach outside of the iurislctional
domain of the writ. But IL any jurisdiction was
vested in the Court to examine the manner in which
the Mayor used his executive and ministerial power.
u
OF the Court sitting at Chambers, and those holding
special term for nonenumerated motions and
chambers business, ana the papers presented p
proprate case for the ISSUE OF writ of prohibit
ton under chapter 70 OF the Laws OF 1879 by virtue
OF which the application of the Mayor should
granted.
MR.. NICHOLS SIDE.
After the reading of the printed points the side
OF Sr. Nichols by Mr.. Townsend. his associate, Mr..
Butler. proceeded to argue at length upon them. In
the course OF his argument the latter characterized
the granting of such awrt ~ dangerous precedent
that would lay the foundation for applications of a
like extraordinary character whenever u counsel in
any Case found delay desirable. on the pretanco of
settling the practice OF the Court at Chambers, A
writ of prohibition, counsel contended issues only
to prevent inferior court from acting without
jurisdiction. exceeding its jurisdiction. and the
question TO be determined upon the application
whether Justice Westbrook exceeded acted without
jurisdiction in issuing the writ and entertaining
proceedings subsequent to IL. The supreme Court
had the power to review by cerfiorari removals by
the Mayor OF New York made under the charter of
the city. and OH this point Judge Wostbrook was
smslained by Anthnrlty when be said. IN ordering