The New York herald., 1879-09-30
THE NICHOLS CASE.

MAYOR CooPERs APPLICATION FOR WRIT OF
CASE.
The decision in the case of ex-Police Commits
sioncr Sidney p. Nichols, which brought before
the extraordinary General Term Of the Supreme
Court, some days since. on an application by
Mayor Cooper for writ OF prohibition restraining
Judge Westbrook from taking any further steps in
the matter. delivered yesterday. The Court
held adjourned session in tho morning. and
Judge Prady read lengthy opinion. which is con.
CURED la by Judges Davis and Barrctt. In this
opinion. In granting the Mayors application, the
judges say, after giving history of the pending
controversy, that by common law writ of GER
tiorari is not q writ of right, but rests in
the ''sound discretion of the court" to
which application may be made. Where return
is made to such writ, and the proceedings in q
condition to be heard. hearing may be secured by
either party at the Special Term except in
General Term" The decision holds tnat the
rule of the supreme Court this subject
existing in ls47 provides one for the hear
ing ut Special Terms OF of certlorari
Ito remove interiocutory proceedings OF subordi-
nate courts, and which was to be brought on by the
usual notice of argument. or. If placed upon the
calendar of the General Term, was entitled to u
preference i'll the morning of any day during the
first week of the term" This rule was. however,
changed in 1868. and the now in force adopted.
The decision concludes AZ follows:-
shcd by the convention OF the judges that they have the
force and effect OF statutes and cannot be properly do
requiring the judges to meet declares that the
must establish rules of practice which shall be binding
trial of mpcachmcnts and the Court of Appeals. The
der the statute entitled to the usual notice Of
not notice of the argument OF motion but the usual
hled) that the cause viii bc brought TO hear
designed to be deliberate ali the qucs
tons properly presented by IT, The code confers
7sO relating to notice motion in action whore tho
Court, Judge thereof. upon an affidavit showing
able in less than eight have application vhstever
to ProeeodinSs upon esr,ior'r r.,
speererm were rsgulsr downo the time hon the order
upon tho granted 1t is quite clear the respond
in that proceeding the retor here entitled TO the
notice of any hearing that should be had Special
Term Ia the certorari Proceedings IL was a right
secured by rule Of This Court adopted in
a the force aud vigor OF statute ON the subject II
rule by convention Of judges he could be de-
prived The order TO show therefore tho
flied having been mado returnable in loss tnan the
asasl ii%o for notice of .rsnmen' was nn.
under It should be prohibited Tins view is based the
the arst Monday of september. and .tn continuing
Special Torn such as contemplated by rule ~ But
appointment Of Terms to be held. there distinction
% .,msr & a .as be ms
ates to motions aud Chambers business
aud not the trial issues OF or OF fact 10 the
exercise of any appellate Jurisdiction
1t was asserted yesterday by prominent lawyer,
familiar with Judge Westbrooks views of the law
the Nichols case that had the certiorari proceedings
come up before him for argument he should have
been compelled to quash the writ This the Judge
seemed to have foreshadowed in his statement. in
which hc said he had been well aware of rule A in
relation to writs Of ccriorari and that party had
u right to make q motion when he pleased, aud in
granting an order to show cause, it was not tor
Judge TO intimate in advance what his decision
might be.