New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-05-07
THE PUBLIC WORKS STRIFE
CLAIMS OF THE RIVAL COMMISSIONERS
TWO COURTS OCCUPIED WITH THE QUESTION
DECIsI oSs RBSERyED.

daton Act OF 1882 which says that the term OF the
commissioner 20 be appointed in December, 1884
should run for four years from May following. Mr.
Smith denies that the Legislature had the right to
| fix on May l, 1885. the data for tho term of
Commissioner Squire to begin
| On tho application made behalf OF Mr. Smith
| for continuance OF the Injunction restraining Mr.
Gliroy from taking possession OF tho Office OF the Com
! missioner of Public Works, argument heard by
Chief Judge sedgwlck In the Superior Court, Special
| Term. Mr.. Smith was represented by Robert Sewel
Nelson J. Waterbury and Denis A. spellissy, and for
Mr. Gilroy appeared James c. Carter W. Bourke Cook
| ran and william II. Clafh Mr.. sewou said that Mr.
| Smith had been duly appointed Commissioner Of Pub
lie Works and that his term Of Office did not expire
for year two II was not necessary then to ar
| que about his right to the office. He IN the
Office and was entitled to remain there until
| was obtained By quo varrantO There other
way OF putting him out "Mr Gllr0y demands pos
session. continued Mr.. Sowcll. "Nog We don't want
any row about this, eudinE possibly IN a riot.'
Chief Judge sedgwick remarked that unless the
other side deemed er legal right TO tako possession
In that way, Of course they would agree shat there
should be no such trouble.
In response TO an inquiry from Mr.. Carter, Mr.
sewen said that the Injunction asked for was to re-
strain Mr. Gilroy from taking possession Of the office
by physical FORCE and also from interfering with tho
plaintiffs exercise OF tho powers ard duties Of the
Office until after legal determination OF tho case.
Mr. Carter added that his client did anything
about that portion Of the injunction relating 70 the
Of physical force he did intend resort
1T, but It tmputati,n against man who had
never contemplated tho Of force With regard tO
the othor part Of tho Injunction he argued that
court OF equity could not grant Injunction 70 inter
fere with the discharge Of the duties Of officer.
The Judge said ho supposed tho phrascology OF tho
order should cover no moro than attempting In any
way TO take possession Of the Office.
WHO HAS THE TITLE TO THE oFFIcEi
I" But" said Mr. Carter, "the performance Of his
duties by Mr. Gruy might be construed as taking
possession Of tho Office. This proceeding seeks to re
strain him from pursuing those rights and remedies
that ho supposes he IS entitled TO- Tho question at
Issue l-vho has the title 10 the Officer" Mr. Carter
maintained that this court had no Jurisdiction TO try
the utlc TO the Office. and that II II hail. no Injunction
could stand except 10 rstraIn taking fOrcblc posses
SION, and court Of equity could not act on that
This was In effect action 10 compel Mr.. Gllroy 20
take QUO waTanto and this court could not detcr
mino which OF the parties must do that
Mr.. Sewcll replied that this court had 1uris-
diction, because any Illegal Interference
With the incumbent would DO Injurious
TO the people at large. The Judge observed that II
this Injunction was simply intended to prevent a
breach OF the peace, Injunction vas not proper
II II intended protect the ncuHlent In holding
ihn Office, injunction would only ar II the court
had tn ncht 10 tr the utIc the Office.
Nj. ScVcu said th" Injunction was only to stand
until the ute TO the Office determined by a court
OF competent jurisdiction. Mr. Garter said he did not
object to a continuance until Judge scdgwick de.
cided this application, but he hoped would be de-
sldd SppedilY A. uee lnIunStoB an embErT1Hs-
msnt To hiS client II Was finally arranged that Mr.
smitHs counsel should hand up tho.l authorities To.
day on tho question Of continuing tho injunction
against orcbly taking possession I the Office, and
uU Judge reserved his decision.
THE QUESTION or GIVING UP THE BOOKS
a crowd OF politicians alled the supreme CouP.
Chambers. and tho Temperature In tho rom was
sitting when the argument order 10 show cause
why Mr.. Smith should not deliver the books OF his |
orloo to Mr.. GIlroy was begun Calvin Frost be-
half Of MIR. smith, contented that his term did not
cHplm until May, 1892. He gave detailed state
ment OF the appointment Of the various commission
who have held Office since 1871, and rec ted The
act Of 1882, which extended the term Of the Commls
sioner thcu In Office, Hubert o. Thompson, which |
would have terminated December 20, Ie-3, To May
l, 1884 As the four year, It was claimed
that when Mayor Hewitt appointed Mr.. smith the
appointment for the torn ending In 1892.
James c. Carter said that II the Legislature was |
authorized extend Nr. Thompsons term. II vas |
extended, and II hal not the power Il done
lie insisted that tho term Of the present incumbent
expired May !, 1850. and that Mr. Gilroy was en-.
tlcd 10 the office. lie Insisted that the Legislature
had properly exercised its powers in the Consolidation
act, and had fixed the term that Mr. smith properly
went out Of Office May l. w. Bourko Cochran !
followed the same side.
PRESENTING MIR. SMITHS CASE.
ExJuhgo Noah Davis, on behalf Of Sir. Smith, |
argued that where person was In possession Of an
office under claim Of right discharge It's duties and
reasonable doubt existed, application OF this kind
should be denied ami the proper remedy by quo |
warranto. The point In the legislation In regard 10 |
This Office that It should have quadrennia term.
Tho legislature, I'm isS2, by a mistake or misapprr-
hcIsion, referred to the term OF Hubert o. Thompson
after the expiration Of his tcrn I'm December 1854, the
Office Should be Hllcd by appontmcnt for four wears
act what IT said II extension by lcgis.
lavo enactment Of tho term OF man while he was In
cwied In 1901 or ls02 did not affect tho rights Of |
justice barrett asked cH Judge Davis whether he bo-
licvcd that under The charter Of l713 the term eW
icvcd It expired in May 1883. TX Judge Davis said
that Mr.. Snlh's claim to tn" office was made in good
about % mater The prcsert application should fall
Decision was reserved
COMPLICATIONS ARISING.
Tho Mayor yesterday caused Secretary Grain 10 send
notices thn secretaries OF all the hoas Of which the
Commiss oner OF Public Works Is member. that
Thomas T. GIlroy had been appointed 10 that office
that he had duly qualified and that notices % all meet
ings hcrcaftor to DO held should be sent b him.
Controller Myers said yesterlay that ho was unable
10 see how he could recognize either party u the con.
tcst for the COmmiss slOnership OF Public Works as
matters now stand Mr.. GlrOy had exhibited to him
his commission hOm tho Mayor ecd filed his bond fOr
the proper performance OF tho duties Of the Office
which tho Controller regarded due notice OF Mr.
GilrOys appointment On the other hand Mr. Smith
had served protest upon him dated May 4, Ia these
words:
hereby notify you that Comms ,loner Of Puhc
Works tho City of ewYork IN undsurbed possession
Of the ONCE and full performance Il, powers and
duties and that you any acton by any
other person claiming the once without violation OF law
Under these circumstances" Mr.. Myers Sald |
neither Of the claimants obtain money frum the
city treasury except upon warrants signed by the |
Mayor tie Chamberlain and myself"
vorovpV ,r HOME IN THE BOODL EMS EXILE