New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-03-23


Special Term commencing December J. 1901. and entered
In Albany County Clerks oice. December l. is'i "''
the REALTORS therein Will print the papers upon sueh eP
pcas and furnish them that the appeals shall DC SUI
mtcd 70 General Term. icing held N the mira
Department, on Tues7y December 8 :ha, the respon'
DENTS upon such appeal will accept notice argument
thereof for that day and unite with the appellants III
request TO tho General put such appeals upon IT,
calendar for that day and Immediately have and decde
such appcals that the defeated party at Gen
oral Term shall Immediately APPEAL u the
Court OF Appeals and the prevailing party shall
accept short notice Of argument Of the oppas ~
that court and unite with the appellants In request to Che
court TO place the appeals upon the present calendar ana
hear them upon day TO Ne fixed BY the court mcieio
as carly as practicable, and that the proceedings OF the state
Board Of Canyassers relating 20 the canvass Of votes TOT
Senator In the XVII, XVIII, AXNth and AANilU
Senatorial Districts be suspended untA the decision
Of the Court Of Appeals upon such appeal, pro-
vdng such decision DO adc prior TO December 80 1871
end that such shall be completed ana me coN"
Gates Of the result and OF election made and issued ~ e
State Boa OF In accordance with the decinoh
Of the Court OF Appeals in made and also
In the XXVh District In accordance Win tho occasion
Of the Court OF Appeals in this and other appeals
Dated, Albany, December Z. 1891. ,,-.,.,rv
/ II MAYNARD and DBLOS McCu IDf'
Attorneys for Board Of Canvassefs ana
Prank Rice, Secretary OF state
j. r. PARKuuRSr
Attorney for j.. d. Sherwood Relator
WILLIAM NOTIlN"hAM'
Attorney Rufus 7. Peck
MATTHEW HALE,
OF counsel for Realtors Daley and PAU
and Darby. and all other Realtors.
NO SUCH INTERPRETATION POSSIBLE
@ In the next place. not only DO MI '"S y" -
Choate. Mr. Matthew Hale. and all the counsel WHO
we're opposed 10 Judge Maynard In the proceeding III
which the stluuatlou was made, deny That any su'H
rtentlon or understanding IN their mind but INC
conduct Of both parties during TIC pcfiod Hhcu"oN
following the making Of the stipulation Is ~'''N ''
,,r,,nrc with any such Interpretation.
Mr. osborne hlm-,H, Oh December :" began PR
oeedns on his par, a to os er Se STIPULATION Wa made
rho proceedings under Judge baFn"iN ~'ucI ga - -
der,hrr 4 aid this new proceeding by Nj. osb,Ths
Suggestion On either side. % far " the rec ~"
that tho>e proceedings were Dy any orc '"i,'ei'' ~
t ,ol1t'n nf Tie words, or intent. OF the slPILiioi
Nor was sIch Il suggestion made ~ any pc'p, J" "'''
frr =. lar - fhe record. show. unul aztec the cor
,e,d rc,nf,,s had ccl removed from the public On o
- Albany The suppOst Ju, uc'tinic. th't t'''f
wa, any understanding. ln Or oui "i i!ihi ~,
corrected returns before the state ,'uNH'Ni.7;
NJ uNcrly iuclns tct with the evidence ana VIZ" ''
different prpcc-diugs on the records 81 inc curt,
g. IL seems wholly impos.lbl" th"t Huoh an 49,,
mcnt could have been intended by any OF ~ parties
IN The stimulation. Before 10 "ha made, ,hc pro-
.i0nal gentlemen last above McuuoI'u I'Hu ~ .
mined as part Of their plan Of procedure 70 pto,uo
Dutchc,, County; and OH TIE 1t Gay "i D''Hlpc. ~
had nr,t,ro,l an order from Judge h"ald-. reiirhbc
i,' m IN, dav Of December al the special Term tn
pourhkes.I-c requiring the Board Oi Comfy ''h'i's
er, Of Dnichcs, County To- show cause why mdhdn@'
sbmld not issue requiring them 10 amend Their tat
rcnf f the canvass Il votes for senator At the hear
inc mon n i order H. show cause Oh the 5th dai 81
December Judge Barnard had ordered q pricmp'1y
maudamls I'm effect requiring The core tp H'N' lu'
=" he made ana upln compliance by the comfy Can
yith Inc direction, ~ this writ, II would become
The lca,,l duty Of the CountN Clerk to transmit me
corrected statements % the three STATE oh'c'' ~ ~
bany designated by law.
EXPRESS LANGUAGE or THE ORDER.
All this lad been done and was known ~ all inc
parties T. the stipulation TO have been DONE at the time
when that paper drawn and signed on the 7th day
Of December More than I'll: simultaneously with inc
making OF tlc stipulation The order herclnbciorc SET
forth I'm full was made In the proceedings against the
state Board Of Canvasscr then pending before Judse
Edwards I'm which the stipulation Itself made !;
and that order, by Its express language o"ntcm
plated that further return such as the polt'cli
Interest opposed to Osborne designed u procure usht
be h, rcacr procured, and De piaced before t" state
nOnrd Of Canvas~crs. That language was mat Ihcy
consider only such return rom the county Oh Duc"cs
The order containing This language entered sub.
snntiaiy by consent In order 10 facilitate the appeal
and was Of course, kInwn IL the counsel IN the proceed
ings who participated In thc NAMING OF me nupuh
il should have been the design OF any Of the parties To
th, stipulation 10 arIes, proceeding which lna ior us
when that proceeding in actual progress at the
time the stipulation made, which was an essential
feature Of The plan Of one Of the parties TO u ana
which was recognized by an order entered by con-
,ont Simultaneously with the making of the stipulation
when the stipulation contains no express agreement for
tho arrc,ng Of such proceedings, aud Indeed makes no
allusiOn TO 1t whatever
NO JUSTIFICATION wlIATEVEI)
Our conclusion then, Is that no justification OF the
removal OF tie corrected election returns from the Offices
Of the Governor secretary OF state aud Controller on
the morning OF December DO can be found in the spu-
laiOn.
But Judge Maynard states another ground Of defence,
which Is in substance, that the County Clerk. storm
| Enans, was at the time he deposited the amended
| statement In the mail, under restraining orders.
The orders referred 10 were two In number an order
| made by Judge fGrsman December II. l7Jl. and
one granted by Judge Ingr;iham on December 81. -
In our opinion short statement of the Facts VIII
show that neither OF these orders had any force or
| Neither OF them waS granted in the proceeding
wherein Judge Barnard made hi, order Of December D.
| They were both granted In a new proceeding, be.
| tween new parties, asking new rliel NE hnnng OIL
| Emans not party.
The ex pnrtc order Of Judge Fursman, made in a
party, wholly imperative upon the County clerk
aud could not control or affect The Performance Oh his
statutory duties.
| Moreover, the stay included in Judge Fnrsman's
order was vacated by the order u the special Term
Of the supreme Court made by Mr. JnSirr Lall'n III
Brooklyn on the 18Th Of December. In Immediate we"
| of which Clerk Emans mnilei the corrected returns
That order wa, that day reduced 20 writing, settled
by tho judge signed by the clerk Of the supreme 'onr
and entered In the minutes OF the supreme Court ~
brooklyn. II thcrcnpon became valid and eii'cina
| order The one consequence OF It's not being also I'M
| mcdatey entered In Dutches County that under
| Rule . 81 the supreme Court " II was not thus
entered within ten days. II might " vacated for rtcgG
orter the rule Of the Supreme Court and the decisions
under IL conclusive upon this point
JUSTICE IYGRAIIAM's ORDER.
The order Of Judge Ingraham was not served on thu
County Clerk until after he had mailed the corrected
| returns and at the lime Of mailing them he had no
| knowledge that the order had been made. lie 50
testified I'm the contempt proceedings before Judge
| The j. Chr. &. HupfcI Brewing Co.'S
Mani Is q