The New York herald., 1879-09-13
THE NICHOLS CASE.
Judge Ingalls, Stay Vacated by
Judge Westbrook.
QUESTIONS OF LAW REVIEWED
A Possibility OF Fresh Compli-
cations Arising.

Judge westbrook yesterday gave his decision
the motion to vacae the stay of proceedings granted
by Judge ingalls, in the certiorsri proceedings inst
tuted by ex-Police Commissioner Nichols against
Mayor Cooper. with view to review by the
Supreme Court of Mayor Cooper's action dsmissing
him from the Police Board On the argument. Mr.
John D. Townsend appearing on behalf Of Mr.
Nichols and Mr.. +. N. Bangs for tho Mayor the
motion hotly contested and the questions Of
law involved both sides pretty thol oughly
ventilated. AS will be seen by the opinion Of Judge
Westbrook. which is given In full below he grants
the motion to vacate the STAY which brings the
back to the same status before the stay
grsnted:-
JUDGE wEsTBRooK's OPINION.
motion made at the Albany Special Term in
Governor of the State and to the Mayor of the city
OF New York. for the purpose Of reviewing their
Nichols from the office OF Police Commissioner of
said city Such motion was not made ex parte but
and the Individual (Mr. MacLeanl appointed to
NIL the supposed vacancy in the Police
Board created by the alleged removal of Mr..
argued by counsel representing all parties and after
a careful consideration the Jadge (Westbrook) who
held such term and heard the arguments directed the
to issue against the Mayor. but refused it
the Governor. The refusal thereof to the Gov
ernor for the reason that under the charter Of
the city of New York. upon which the alleged right
OF removal based the action Of the Governor and
Mayor was several and not joint. and as valid re-
moval required their separate concurring judgment
the reversal of that OF either would afford the reator
complete relief. The order directing the writ to
but by terms thereof it made return able ut
special term Of this Court. to be held Chambers
IN the city of New York, the first Monday of Sep
tsmber. inst. aud to their direction the writ. as
allowed and served. conformed The return to the
mas o sa At &
the city and county of New York, on the 30th Of
Aug August last. Mr.. Judge Brady presiding. on
OF filing return extended to Tuesday, Septem-
ber 2. 1879. The Mayor having taken appeal from
the order allowing the writ to the General Term
OF the Third Department applied to this Court at
Special Term thereof Judge Westbrook presiding)
for stay of proceedings pending such appeal
Upon such application tor q stay counsel both
sides were fully heard and after careful and deb
crate consideration lthe Judge writing an opinion
the stay was refused. Such refusal for
the reason that every question which tho
Mayor could raise upon the appeal from the order
appeal to be taken from any judgment OF this Court
based upon the return. and the public interests
volved the delay and loss Of time occasioned by the
appeal should not be incurred.
Speedy DETERMINATION SOUGHT.
To expedite u speedy decision of the matter the
counsel ior the reator was required to give stpu
lation to argue the appeal at General Term. to be
held in the First Department in October next. That
stipulation was given. and Special Term order
duly entered in the city and county OF New
Ing the % stay On the I'll day Of Sept, sepie%per ns
inst. the same application which was made
at the New York Special Term Judge westbrook
presidng) made to the General Term. then in
session IN the Third Department. (held by Judges
Learned. Boardman and Follett), and stay of pro-
II has been duly entered. After the Special Term
and General Term had both denied the stay of pro-
ceedings the counsel for the Mayor prepared papers
and notice OF motion for Special Term to be held
at the Chambers OF MIR. Justice Landon, in the city
Of Schenectady. on the third tuesday rue Of septem6er
On these papers Mr. Justice ingalls, granted stay Of
proceedings under the writ until such motion could
be heard and determined. which stay the counsel
tor the relator moves ut Special Term to vacate.
GhoUNDs FOR THE STAY.
In disposing OF the motion to vacate the stay OF
Judge ingalls, the results OF deliberation VIII be
stated without giving full the mental processes by
which they have been obtaned:-
First-The motion by the Mayor. to be made in
Schenectady IL to quash tho writ and not the order
directing Its issue. The order directs in what dis
rict and county future proceedings hereunder shall
be had and taken. The power of the Court to FIX the
venue OF further action depends upon it's general
authority i'll the premises, and not, perhaps, upon
section s25 of the Code, which confers upou JUS
tce OF the Supreme Court when acting as u judge.
the power which the Court inherently must
possess. The officer to whom the writ cannot
annul the effect of the order by disobeying its
mandate ana refusing to file his return. The subse
Quent orders, entered in the city and county of New
York also. IL such thing is possible, validate and
confirm the position that that city and county is the
spot where the litigation must be conducted. Sec
ond-As the proceeding is pending in the First dis
trtct motion to vacate stay of proceedings maze
I S os DS No Ssa
ever been entertained by the profession ON this
point ana 1t is also expressly conferred by section
772 OF the Code. Section 776 contains Limitation
upon the general powers OF the court. 1t prescrbes
the practice to be pursued upon second order made
by judge when the same has been wholly or partly
refused. or granted conditionally terms by
other, and makes II the duty OF the judge grant
ing the last order - to vacate it himself. and
the application, then any judge may do it upon
proof by affidavit, OF the facts. Third-Every ques
ton which the motion to Quash presents was con-
sidered upon the application for the writ of certi
orart and the appeal from the order, allowing the
writ will involve the same identical propositions
which sought to be presented by the motion
quash. In substance, then, though in form, the
stay granted by Brother Ingalls, is precisely what the
Court both at Special aud General Term, has
fused, and 1t was granted to enable, not superior
tribunal. but the same. though held by different
Judge, to review past action, in short to permit
one judge to review the action of his judicial
brother and peer However much 1 may respect
an sssociate-and the learning and integrity of Judge
ingalls, freely concededa careful consideration
having induced me to refuse stay to review my
Ssfore hsspng ws saJ nnon the ae in hnh
the General Term has sustained my conclusion,
must compel vacation Of one which stops all action
until . brother judge has reviewed Il. Fourth-A
motion to quash writ must be made in the district
In which 1t 10 returnable. or at term held in a
county adjoining that in which ii il returnabe,
ana, q rule such motion can only be entertained
after return IL In fact made. stay Of proceedings
to enable a motion to be made elsewhere aud
before return cannot be upheld, even though
. motion to quash 1t can be entertained (which is
not concededl when the allowance has been made on
motion and after full hearing. Ffth-Tho writ
properly made returnablo ut the Chambers,
special Term. The term now being held there is u
ipecial term of the Supreme Court. having all the
powers and functions belonging thereto of which 1t
Annot be deprived by rule which simply par
dtions business among terms and parts of the
,ourt. making the writ returnaple when IL was. s,
lso. II seems to me, fully warranted by the rules.
Nxth-The motion to vacate the stay is granted.
NEXT STEP IN THE PROGRAMME.
Al stated above. the decision of Judge westbrook
leaves the case In the same position as before the
granting Of the stay by Judge Ingalls,. or course.
the matter must be taken up at this point. Mr..
Townsend will accordingly insist Mayor Coopers
complying with the order Of Judge westbrook and
ale his return to the writ of certiorari. This. of
course. will give rise to possibly new complications
md 1t 10 fair to assume that It has yet got hardly
beyond the point OF Its beginning.
THE THIEVES STOREHOUSE.