The evening world. [volume] (New York, N.Y.) 1887-1931, 1893-12-26
STAY FOR M'KANE.
The Gravesend Gear Will Not Go
to Jail Just Yet.
Cullen Says There Is Doubt as to
Barnard's Jurisdiction.
Found More In the Subject than He
Had Supposed.

John Y McKane will not go to Jail
just yet
Justice Cullen. in the Supreme Court
Brooklyn, this morning granted a stay of
proceedings to McKane pending an APP
peal from Justice Barnard's sentence Of
thirty days in Jail and $50 fine for con-
tempt OF court.
The decision is based on doubt as to
whether Justice Barnard had jurisdiction
over the subject matter for which the
Injunction was granted.
The decision begins with the state
ment that there was ample evidence
before Justice Barnard to justify him in
finding that the defendants had wilfully
nered resistance to the mandate of the
Court, and that there had been con-
tempt: also that the power Of "A court of
equity to grant mandatory iniunctions
pending the action, and before trial, is
too well established to admit of question.
There Is difference, the Justice holds,
between an injunction awarded ON fina,
Judgment and an injunction granted as II
provisional remedy The McKane. in
Junction. he adds. Is of the latter class,
and while he always considered the ac-
tion of a Judge to be final in such mat
ters. until vacated or rryers.d. b" has
decisions that such view H. qucstipnab bic.
II not erroneous.
The opinion goes on to cite a number
OF opinions showing that Courts might
not have power to try the action finally
although temporary iniunctions might
have been granted. II Is on that ground
that the stay is granted. Justice Cullen
1.-THE. case Mt bar differs somewhat
from those cued. The injunction was
not to affect the vote nor the Coa't, but
TO restrain the exclusion. OF certain
watchers. Mandamus would he the Or,li
nary remedy. That remedy had failed 10y
the election officers evading service Of
now required by the code, though from
the earliest time up to 1871 this court
could grant mandamus in clear and
urgent case without notice.
'"fhe complaint alleged II conspiracy on
the part CT the persons who controlled
the election machinery and. In fact the
the law and to defraud the relator in the
election. l believe that thes" allegations
made case for the Intervention of
equity. as also have believed that the
decision OF Justice Barnard on that qucs-
tion was conclusive. But 1t IL very clear
that both propositions are questionable
ana subject to grave doubt. Even fraud
cases have not always succeeded in get
ting equity to intervene.
ITO s,op numerous litigations which
had produced conflict OF judicial au-
thority, and watch might disturb the
peace Of the State. was an end very de-
sirable in itself. but was not to be
obtained by the equitable interpretation
OF the Court AT the Peoples suit. peo-
pie vs.. Albany ct al. 81 New York. lGl
III this Injunction order were invalid:
the defendants. however wicked and
fragrant their offenses, cannot be pun
ished for contempt, but their punishment
rlust be left to the ordinary administra-
ton of the criminal law. The question
CT validity IA subject to doubt, and the
stay should therefore be granted the de-
fendpnts to renew their bonds ON appeal
'If the opinion has extended beyond
1t IS because / have found more in. the
subject than | had supposed"
1t was 1920 o'clock before Justice cut.
zen arrived at the court. For an hour
previous to his arrival there had been I,
large crowd of lawyers, politicians and
reporters about the doors of the private
chambers of the Supreme Court Lawyer
frederick and ex-Judge Troy. Mechanics
counsel, were among the crowd early.
When Clerk Stevens read the last par.
agraph of the decision, CX-JuIGe Troy
asked to read 1t before it was given t.
the reporters.
AS McKanes lawyer read II through
he made short notes at various points
and then left the Court House to carry
the news to the Gravesend chief.
John Y Mckanc was seen by an
Evening World' reporter nt his Office
surrounded by II crowd of Graves"nd
friends, who were Offering their con-
gratulati1ns.
at is just as expected" said Nc,
Kane. II knew we would get II" stay
We will win at the end, too. There is
no doubt about the final result"
McKane's appeal will come IN hefor,
he General Term Of the Supreme Court
IN Brooklyn. on the second Monday II
February.