The New York herald., 1879-09-09
THE NICHOLS CER7IORARl.
How Judge Ingalls, Stay Was Received by
The Commissioners Friends.
A COUNTER BOMBSHELL.
Seeking to Set Aside the Stay
OF Proceedings.


OF Proceedings.
The proceedings instituted by ex,Police Commits
sioner Sidney P. Nichols for his reinstatement.
against Mayor Cooper and the proceedings taken by
the latter official to prevent review by the Court
of his action dismissing Mr.. Nichols. have within
the past three or four days become involved In
considerable of jumble. What with orders and
counter ORDERS stays and counter stays and hotly
ntigious counsel it looks If it would take
some time to bring the proceedings to close.
FIGHTING AGAINST suDGE INGALLS, STAY.
The case came up in court again yesterday. this
time on the order granted by Judge Westbrook re-
quiring tho Mayor to show cause why the stay of
proceedings obtained from Judge Ingalls, should not
be set aside. Mr. John d. Townsend counsel for
Mr.. Nichols appeared at three p M. before Judge
Westbrook, in Supreme Court, Chambers for the
motion, and the case being called said His
Honor was SO familiar with all the proceedings in
this matter anterior to this order that it would be
unnecessary for him to review them.
81 am not familiar" interrupted Judge Westbrook.
with tho papers which Judge ingalls, granted the
stay"
These papers, interposed Mr.. F. N. Bangs, coun-
sci for the Mayor Though made returnable at three
O'Clock, not served upon until after eleven.
The aadavits on which the motion based go into
matters to which we think ought to furnish
response It was entirely impossible for to pre-
pare response within the limit given us. One Of
the is that Mr.. Knox, who made the applica-
ton to Judge ingalls,. which is the subject Of this
motion"
"After having first made similar application to
the General Term. believe. suggested Judge West
brook.
Taft f,opo Co<
bring home his family. and he will not be hero until
tonight We therefore ask that the hearing be
postponed until tomorrow"
THAT seems to be reasonable" was Judge West
brooks response.
"The only matter in Mr.. Knox's affidavit" said Mr.
Townsend. ''upon which Judge ingalls, order was
granted was question Of law, and not question of
fact at au.'
"What am speaking of. answered Mr.. Bangs, sis
In reference to the moving papers the other side
We wish Mr.. Knox's statement to what took place
before Judge ingalls,. There other matters in
these afdavits which we don't think are material,
but We suppose the other side regard them material
and we must meet them. It Is impossible for lis to
do so now"
- "what took place before Judge Ingalls," said Mr..
Townsend. appears by the papers served upon us.
Judge ingalls, granted the order on the papers not
on what Mr.. Knox knew that we don't know now"
n,.1 THE parties , on the other sde" Mr. Bangs re-
proceedings before judge ingalls,. We have reason
TO believe that these defects did not that
"what defects do you speak Off" asked Mr. Town
send.
we do not refer to any defects not on the face of
the papers," said Mr. Townsend
JUDICIAL COURTESY
"In dealing with order made by brother Judge
OF the standing OF Judge ingalls, do not desire to
proceed very summarily," said Judge westbrook.
show why It should be eonnued toyeh 0f 20
was surprised you should have obtained it, as am
informed similar application was made to the
General Term Of the Third Department and re-
fused"
.'On Friday afternoon" Mr. Townsend said. .the
other side based their application for . postpone
ment upon the ground that they would have moro
time. and they used portion of that time in going
before another judge to get stay which he had no
power to grant. Now they wanted time to get the
affidavit or Mr.. Knox who went before that judge
know anything other than was contained in the
papers on which the stay granted. The only
was to get more time to carry the over to
another General Term and get the away from
His Honor Judge westbrook. They knew that the
stay granted by Judge ingalls, could not stand but
Tor few days. and they only sought for delay
After some further argument Judge westbrook set
down the hearing fortwelve o'clock to-day.
Mr.. NICHOLS AFFIDAVIT.
The following is the affidavit of Mr. Nichols upon
which Judge westbrook granted his order to show
cause why the stay of proceedings granted by Judge
ingalls, should not be set aside:-
Ctty and COUNTY Of Neso York. ss:-Sidney P.
Nichols being duly sworn says-After the issuing
and service upon Edward Cooper, Mayor of the city
Of New York. OF the writ of certiorari In this
matter, which required him to return his proceed
tnGs for the removal on the 1st day of September,
1872 at special term Of this Court then to be held
spondent, as appears by the paper 6led in this
matter on or about the SOth day OF August, 1872
said city and county; applied for and obtained
from the Hon. John X. Brady one of the justices
OF this Court. stay of proceedings and extension
OF time TO make return to said writ until the I'd day
OF September inst. On said I'd day of September
inst. this matter called at special Of this
Court held in said city and county of New York,
the Hon. T. r. Westbrook, one of the Justices OF
this Court, presiding, and thereupon the respondent
as am informed and believe, appeared by 4. N.
Bangs as his counsel. who applied to said special
term OF this Court for further stay of proceedings
Hnd All extension OF time for respondent to make
return to said writ. Such motion WAS opposed by
my counsel. and upon such motion affdavits were
hled on behalf OF the respondent ana myself the
Court reservng its decision, and said aidavits filed
on behalf OF the respondent are now the files OF
the Clerk of said city and county of New York as
am informed and believe Thereafter on the Sd day of
inst an order was made and entered by said
special term OF this Court, copy OF which Is here
unto annexed. certified copy of which was AZ am
informed and believe, served upon said respondent
personally denying said motion tor stay of proceed
tngs. and extending the respondents time to make
return to said writ rs therein specified In accord
with the provisions of said last order
my attorneys. as they inform me, prepared and
served the 4th day of September inst upon WILL
inn c. Whitney, Esq. attorney for the respondent.
clerk of this Court, stipulation to the effect that
the appeal taken in the Third Judicial district by tho
respondent from the order granting the writ of
certiorari be heard ut the coming October general
term in the First Judicial district. Neither before
the 5th day OF September inst did the respon-
dent file with the clerk of this Court the stipulation
referred TO by me said last mentioned order or
make any return whatever to said writ OF certorar.
Instead OF making return to said writ the respond
ent. as appears by the papers served upon my at
torneys or about the 9th day of September inst,
applied parte to the Hon. @. r. Ingalls, of tho
justices OF this Court, and upon an incomplete
statement of the facts affecting the matter obtained
stay OF proceedings herein until the hearing and
decision OF a motion by the respondent To super
sede or quash said writ, said motion being made re-
turnable ut special term OF this Court to be held
st schenectady on the third Monday Of September
inst. 1t appears from the heading OF said order to
have been obtained in the Third Judicial district no
other place where IL signed being specified in
the order, Notwithstanding the tact that this matter
mas been and Is pending in the city and county of
New york. where both the respondent and reside
i am AdYisel by varily haliexo