The sun. [volume] (New York [N.Y.]) 1833-1916, 1892-02-19
EarANS NOT IN CONTEMPT
Judge Cullen Holds that He Properly Trans
nittea the DutcAess Returns to Albany.


uittea the DutcAess Returns to Albany.
Judge Edgar NJ. Cullen. in the Supreme
Court. Brooklyn. rendered a decision yester-
day on the motion to punish County Clerk
Storm Emans Of Duchess county for con-
tempt OF court in having failed. as alleged. to
deliver In Albany tho Deane returns of the
Senatorial election In the Fifteenth district.
He denies the motion on the ground that Mr..
Emans properly delivered his returns ut Al
bany as ordered by the Court, and that they
were given back to him by the State officials
who had them in their possession. He says:
Tho order for the alleged violation OF
which 1t is sought to punish the respondent
was made in tho assent OF the parties in open
court The statute provides that the County
Clerk shall deposit three certified copies OF
the returns in the nearest Post ONCE. ad-
dressed to the Governor. Secretary Of State.
and Comptroller. 1t is the duty Of the secre-
tary Of State to file In his office the certified
statements received by him from O County
Clerk and to obtain from tho Governor and
ceived by either Of them and file tho same in
his office REV. Stat. part l. chap. q. sec. 23.l
The whole scheme OF tho statute was declared
by the Court Of Appeals In People ex rel DAILY
VS. State Board Of Canvassers. intended to se-
cure before the State csnvHssers the physical
presence Of the returns. The real duty
Of the CLERK is to transmit: the deposit in tho
Post ONCE is merely the means Of transmits
der such means Intellectual would be both q
breach Of official duty and q violation OF the
taken in obedience to another valid order
That at the time Of mailing the returns the
s NJ DID a tRHx # the s4 # ns es ss
E%aPs eject sn O. sSst H oldes vas
ps da not aeqs sHn ss
done Or Justify him in taking such action; But
the statute and the order Of this court was to
transmit. still 1t is clear thar at some point
sponsibility for the retn rns devoived upon other
officers. The person who was clerk mig mt after
tss ans
disobedlence Of the Court order, Such point
they were dl rected to be sent It appears that
I'll hs fs o.s q the s sa2 s
n the public Offices Of those officials. Emans
tary q state n the e Of the seeretaSy
y hs :; 5 sSs
AZ to the return addressed to the Governor.
in ths oes n Appears tst
Emans. before going to the office. saw tho Coy
ernor. to whom he stated that ne had forward
sany What could be DONE about t % The
Govern& referred him to the deputy Attorney
General. who was counsel for the Board OF
s5d for its thn
advised. What passed between that, officer
and Emans does not appear save by the afil-
dayit OF Mr.: Emans: who states he was advised
legally do So After this he RECEIVED the re-
turn from the Governors office. The Governor
when informed BY the messenger OF such Dc;
an implied authority from the Governor to
was taken from the Comptroller's ofllce.not by
nsrd the sepats @ ' Wso the
The clerk in tut oi!iee thinks he toid the comp.
% fY tas II s55aS dnsd y
weigh the indistinct recollection Of the clerk.
But though the Comptroller was not personally
appears on tho evidence by his procurement.
but by the Comptroller's own counsel. Though
the enclosures containing the returns had not
any OF the officers as to their contents. but the
the papers delivered up. There WAS. there.
sion Of the rsturns to the ofiicers Prescribed
by statute: The returns were not before the
Board OF State Canvassers. not because OF any
ords 81 Ss oa
aovernor and the counsel Of tie Comptrcller.
The returns u were taken from the several public
and were given to Mr.. Emans. N
the motion to punish for contempt IS.
therefore. denied. but as there was ground for
without costs"