The evening world., 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 $3.50 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
offered resistance to the mandate of the
Court and that there had been con-
tempt; also that the power of IA court of
equity TO grant mandatory tnjunctions
pending the action and before trial, Is
too well established to admit of question.
There Is "a difference, the Justice holds.
between an Injunction awarded on iina'
provisional remedy. The McKane in
junction. he adds is OF the latter class.
and while he always considered the ac-
ton Of IA judge to be final In such mat
ters, until vacated Or reversed, he has
found on examination of Court of Appeal
decisions that such view Is question: BILE,
If 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
that che stay Is granted. Justice Cullen
says;
from those cited. The Injunction was
not to affect the vote nor the count, but
to restrain the exclusion, of certain
watchers. Mandamus would be the ordi-
nary remedy. That remedy had failed by
the election officers evading service of
notice of the application, notice being
now required by the code, though from
the earliest time up to 1877 this court
could grant mandamus in a clear and
urgent case without notice.
The complaint alleged conspiracy on
| the part CT the persons who controlled
the election machinery and. In fact the
| whole government of the town. to violate
the law and to defraud the relator in the
election. believe that these allegations
made case for the Intervention OF
equity. as l also have believed that the
decision OF Justice Barnard on that ques.
ton was conclusive. But II Is very cleal
that both propositions are questionable
and subject to grave doubt. Even fraut
cases have not always succeeded in get
ting equity to intervene.
ITO stop numerous litigations which
thorlty, and which might disturb the
peace OF the State, was an end very de-
sirable in itself, but was not to be
Obtained by tne equltdDIe iHteIpOSltioH
pie VS.. Albany ct al. 81 Kew York. l6i.
III this injunction order were invalid
the defendants, however wicked and
| fragrant their offenses cannot be pun
| iShed for contempt, but their punishment
must be left to the ordinary admnistra-
ton of the criminal law. The question
| Of validity Is subject to doubt and the
stay should therefore be granted, the de.
PENDANTS to renew their bonds on appeal
"If the opinion has extended beyond
the limits indicated in the argument
1t Is because | have found more in the
subject than l had supposed"
1t was 1920 o'clock before Justice Cul
len arrived at the court. For an houl
previous to his arrival there had been q
large crowd of lawyers, politicians anC
chambers OF the Supreme Court. Lawyer
Roderick and ex-Judge Troy. .Mckane's
| counsel, were among the crowd early.
When Clerk Stevens read the last par
agraph of the decision. eX-Judge Troy
asked to read 1t before 1t was given tc
the reporters.
AS McKane's lawyer read 1t through
and then left the Courthouse to carry
the news to the Gravesend chief.
John Y. Mckane was seen by ar
Evening World" reporter at his offic,
surrounded by n crowd of GravesenC
friends. who were offering their con
CALCULATIONS.
1T is just as expected" said Nc
We will win at the end. too. There Il
no doubt about the final result"
McKane's appeal will come up befor'
the General Term Of the Supreme Cour
In Brooklyn. on the second Monday II
February.