The New York herald., 1879-12-20
KINGS COUNTY SURROGATESHlP.

hlNuo CUUNl1 DURRUUAl EOHlT.
WALTER L. LIVINGSTON DECLARED THE RIGHT
Full INCUMBENT BY THE COURT OF APPEALS
AND ABRAM H. DALEY ousTED-THE DEcIs-
ION OF THE LOCAL COURT REVERSED.
There a veritable political bombshell dropped
into the official camp in Brooklyn yesterday upon
the receipt of telegram from the Clerk of the Crt
of Appeals which read as folows:-
Tho People rel Abram ii. Daley vs. Walter l.. Liv-
ingston5Jsdgment reversed and new trial granted;
The effect of the decision is to dispace from Office
Surrogate Daley who has for two years and six
months discharged the duties of the re-
sponsible Office in question. and to rein
state Mr.. Livingston. who holds the certif-
cate of election. which was accorded to
him by the Kings County Board of Caivassers.
Mr.. Livingston the nominee. in the fall of 1876.
Of the independent democratic party of Kings
county for the Office of Surrogate. and his nomina-
ton was indorsed by the Republican County Con-
vention. The election held on November ana
the result remained in doubt for several weeks.
When the before the canvassers it
found that many OF the returns from the various
election districts incorrect. and there were al
legations Of fraud Mr. Daley through his counsel.
asked that certain returns be rejected their
inaccurate The canvassers, however, con-
tended that they could not go behind the
face of the returns, and they therefore gave the
certificate OF election to Mr.. Livingston. His ma
jority was given by the canvassers as 2ss. Mr..
Daley, who tho regular democratic candidate
tor the office. received information from certain dis
tricts which he deemed sufficient evidence to con-
vince him that he had been detrauded out Of ballots
to which he was justly entitled. He therefore de-
termined to contest the right of Mr.. Livingston to
hold the office. From the Supreme Court he OBJ
tanned writ of quo warranto in March. 1877. and
then brought suit to test the validity of Mr.. Living
Mr.. Daley. lawyer. entered upon the discharge Of
his duties on January l. 1877. and appointed u full
corps OF clerks and court officers.
Mr.. DArLEYs APPEAL.
On April 20, OF that year, the case up for trial
before Justice Gilbert and q jury in the Supreme
Court. General Benjamin F.. Tracy appeared
counsel for Daley and ex-Judge Morris. Thomas
L. Pearsall and n. II. Clements represented the
interests of Livingston. large number OF bal
lot boxes, oil Of which had been kept since the pre-
vious election under close police surveillance at
Headquarters. were brought into court on the trial
were duly appointed by tho Court for that purpose.
The prosecution claimed. after the count had been
hundred for Daley. The question as to whether
Dsiley Livingston had been elected was
then submitted to the jury. and the latter after
elaboration. returned verdict III favor Of Mr. Daley
Judgment in behalf OF the latter was thereupon
tered on May H. The same day wri. of "ouster'
was obtained by the successful candidate against
Surrogate Livingston, upon presentation of which
the latter surrendered the custody OF the Office.
The Livingston official clerical corps to the number
OF about twelve, were forthwith discharged, and
made way for the friends or Mr.. Daley Counsel for
Mr.. Livingston then took the case before the Su-
the judgment Of the Court below. From the General
Term the matter was taken before the Court of Ap-
peals where ii was argued at length October T. lS79
the result being set forth above
MR. DAILEY's OPINIONS.
Surrogate Daley, who served one term as justice
of the peace some years ago. was interviewed upon
the subject Of the recent adverse decision OF the
Court oil Appeals in his case. He said he thought
that the decision left him In office uutil such time as
order of restitution is awarded to Mr.. Livingston
which order must come from the Supreme Court. on
served on him. He was not aware of the grounds
upon which the decision OF the Court Of
Appeals assssd SS Of had
still held the certificate OF election issued by
the Board OF County Canvassers. He was Of the
OF motion to be made the Supreme Court for res-
tution after which the motion will for argu-
ment. & He had doubts & as to whether any court Of
pending trial. He felt throughout. he said
that Livingston had the sympathy OF the Court Of
Appeals. The case had been handed down yesterday
because it the last day of the term. Surrogate
Daley left Brooklyn last night for Albany to examine
Despite the opinion Of M DALEY to the contrary
there is strongly expressed belief among lawyers
Of Kings county that Mr. Livingston the regularly
certified Surrogate. put in official appearance
and take full possession of his office. and make such
changes in the personnel as he may At. without
any further delay The advocates OF the latter opin
ion hold that inasmuclAas Mr. Daley held office by
virtue of Judgment. and said judgment now having
been wiped out he can no longer claim right to
discharge the duties OF Surrogate. MIR. Livingston
will endeavor to assume the charge Of the Office
soon lie shall have received official transcript
of che text OF the decision of the Court Of Appeals
The latter Court holds that Judge Gilbert should
have charged the jury to reject the contents Of the
ballot boxes evidence unless satisfied that they
had not been tampered with. The onus of proving
that they had been kept secure and nviolate
Daley and the OF proving that they
had not been tampered with was not ON
Livingston. The decision is concurred in
by all the Judges Of the Court of Appeals The effect
OF the decision to the reinstatement Of Livingston
not considered by the Court. The new trial Of
the cannot be held until the February term Of
the opinion OF several lawyers that the decision
docs not in any manner whatever affect the legality
Of the official acts of Surrogate Daley. 1t is not
known, however, whether Mr. Livingston re-
cover back pay for the time he has been out of Office