The New York herald., 1879-09-10
THE NICHOLS CONTEST.
The Certiorari Proceedings Against
Mayor Cooper.
PAPERS ON BOTH SIDES.
Argument on Application for Stay To
Be Heard To-Day.


1t was nearly two o'clock yesterday afternoon
when the order to show cause why the stay granted
by Judge Ingalls, prohibiting any further action on
the part OF ex-Police Commissioner Nichols in his
certiorari proceedings against Mayor Cooper. pend.
ing the appeal to the Supreme Court. General Term.
was reached for argument before Judge Westbrook
in Supreme Court, Chambers.
Mr. Townsend began to read tho papers on be.
half of Mr.. Nichols. This took some time. as the
papers were volumnous They comprise various
papers which have already been published. among
them there being the afhdavits Of Mayor Cooper,
Burton n. Harrison aud Henry L. Knox. which
the stay granted by Judge Ingalls, aud also tho
affidavit of Mr. Nichols. on which granted the
present order to show and the proposed action
of Mayor Cooper to the writ of certiorari.
RULES OF PRACTICE.
Having finished the reading OF his papers Mr..
Townsend said that he applied to have Judge Ingalls,
order vacated and that the Mayor be compelled to
make a return different from the proposed return
which had been served on him by the Mayor.
AFFIDAVIT COMMISSIONER MAcLEAN.
Mr.. Bangs next proceeded to read various affida.
Wits submitted on their behalf. These all new
atdavits, and the more important ones given In
full below. First in order the affidavit OF Police
commissioner MacLean -
Charles +. MacLean. of said city. being first duly
sworn says as follows:-It is not true stated in
the affidavit of the relator. to on the 8th Of
September inst. in this proceeding that the relator
never recognized this deponent acquiesced in his
city of New York. On the contrary, when the
said relator shown the certificate Of the
Governor in relation to such removal he
building Of the Police Department. This deponeut
was. by his associate Commissioners of Police.
rooms heretofore occupied in said building by the
relator were. by the said Commissioners, assigned
them; that thereafter the said reator called at the
deponent's Office, in said building, and personally
him any and all assistance he could give him in the
discharge of his duties in relation thereto.
Sworn to before me. this 9th day Of september-
j. H. MCCARTHY, Notary Public
MIR. KNox's AFFIDAVIT.
Henry f. Knox, of said city, being duly sworn,
deposes and says:-That he on behalf or the re-
spondcnt in this proceeding, attended, with Samuel
Hand. Esq, OF Albany (who associated with de-
cee6ing), before His Honor Mr.. Justice Ingalls,, on
tho 5th of September 1872 at the chambers of said
Justice, in the city OF Troy, upon an application
behalf of the respondent for an order staying pro-
ccedings. which order was subsequently granted by
says that on such application to Mr. Justice ingalls,
1t distinctly stated to said Justice behalf OF
the respondent that certain application had been
made to the General Term of the Supreme
Court sitting iI> and for the Third Department.
at the village OF srra.oga sPrngs ana M II was az
Brady had granted short stay OF proceedings and
had incorporated i9 his order permission to the
spondent to apply FOR further sion aud stay;
and the fact OF said application to the General Term.
and the fact of said order of Mr.. Justice Brady
distinctly understood by Mr.. Justice Ingalls, at the
time of his granting his said order. Deponent also
says that there also exhibited to Mr. Justice In-
gals the opinion OF Mr.. Justice Westbrook delivered
by him ut chambers in the the city of New York.
the 4th OF September, 1879. Deponont further
says that he was present at the General Term Of the
Supreme Court at Saratoga Springs when the afore-
said application was made to that term that sucl
application was made by Messrs Hand Hale
hasalf Of Gam hat
plication for an order requiring the reator 10
show cause why the pending appeal should not be
heard at that General Term. respondent offering to
stipulate to argue the appeal any time during the
term; and Messrs. Hand X Hale also applied, aud
made it part OF that application. that pending such
order TO show cause the proceedings OF the relator
should be stayed. The General Term entertained
said application. but denied il but or more Of
the justices sitting at General Term suggested
to the counsel making said application that the
questions they desired to raise might better be
raised a motion to quash at Special Term rather
than the appeal from the order granting the writ:
and thereupon notice OF such motion was prepared.
and such notice among the papers SUBJ
mitted to Mr.. Justice Ingalls,. and Mr. JUS
tice ingalls, informed, dcponent has
already stated of every material fact bearing upon
his right and duty grant said application SO far
counsel acting for respondent knew OF any such
fact or believed the same to be material and he
granted the stay made by him with full knowledge
thereof The motion now pending. returnabe at
Schenectady. is the only motion to quash super-
sede which has been made by respondent. and the
stay granted by Mr.. Justice ingalls, pending such
motion is the first and only application for such
is mistaken when he says in his affidavit,
sworn to on the 8th of September instant that all
the reasons assigned for quashing superseding
the writ of certiorari mentioned in the afndavit
heretofore made herein by this deponent were ,ssed
upon by this Court after the respondent had been
heard, when the order entered directing tho
writ to issue; but. on the contrary, some of the
questions sought to be raised by the motion of the
respondent now pending raised on the face OF
the writ OF. .certiorari itself. HENRY Il. KNOX.
MAYOR CoOPER's AFFIDAvIr.
Edward Cooper. being duly sworn says fol.
lows IL am the respondent in this proceeding. Re-
ferrng to certain averments contained In the ani-
davit of Sidney r. Nichols sworn to on the Sth Of
September 1879. say that. as am advised by my
counsel and vory believe 1t is not correct either
matter OF fact laws that the venue of this msttcr
for all or any proceedings subsequent to the making
and entering of the order directing the writ OF
tiorari to issue is the city and county of Now York;
but. the contrary that at least to all matters
occurring In said proceeding prior to iling the
return the Venue of the proceeding has. by virtue
of the acts OF the relator in procuring the writ to
issue from the Third district. been laid in that dis
trict. EDWARD COOPER.
Sworn to before this 9th OF September.--JouN
TRACY.
wEsTBRooK EXPLAINS.
The reading of aiidavits on both sides being COM
cluded, Judge Westbrook announced that he would
hear the argument IN the the reassembling OF
however, he took occasion to explain his action in
the case. He stated that IN granting the orders he
had issued he had been actuated solely by desire
to bring the matter to as speedy detorm ination
OF grave Importance and largely affected the inter-
est OF the community who were necessarily Affected
by the proper administration of public affairs.
WHEELER
The hearing in the OF Police Commissioners
De Witt 9. Wheeler further adjourned until
Tuesday next by Mayor Cooper. the writ OF prohi-
biton issued by Judge Van Brunt being still In force.
NM mr.