New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-08-04
THE MAYOR AND THE LICENSE.
JUSTICE CLEMENT RESERVED DECISION IN
THE ALLEGED CONTEMPT CASE FOR
FAILURE TO OBEY A MANDAMUS.

FAILURE TO OBEY MANDAMCS
The application TO punish Mayor Wurster for
contempt of court because he failed to obey the
mandamus Of the Supreme Court directing him
to issue or cause to be issued the Surf Athletic
Club Of Coney Island a frst-class theatrical
license was heard by Justice Clement yester-
day William c. Cooke Assistant Corporation
Counsel opposed the application. and Almet J..
jerks appeared for the club Mr.. jerks said
that when the mandamus served on the
Mayor he said that he had taken the advice Of
counsel. and would not grant the license. as he
had appealed from the decision OF Justice Os-
borne. The question for the consideration OF
the Court whether the notice OF appeal
acted a stay. Mr. jerks said he should
claim that II did not. He quoted a number or
the sections Of the Code UNFOLDING his conten-
ton. and Justice Clement said he should be IN
cllned 10 hold in favor OF Mr. jerks unless there
was section OF the Code which made an
exception In favor OF city officials. Mr.. jerks
said he knew OF no such section but Mr.. Cooke
said that the General Term OF New-York had
held that a city official when acting for the city
was practically the city for purposes OF appeal
and that a notice Of appeal acted as a stay in
mandamus proceedings. The book in which the
case reported was sent for and after read
ing the opinion Justice Clement sald that NJ
thought he would he compelled to hold with the
Corporation Counsel II II had been a new ques-
ton. he would have had some doubt about the
matter Mr. jerks read the opinion. and said
he would like to hand up a brief regarding IT,
He did not think It applicable In the pres
ent case. Justice Clement said that he would
allow him time. and reserved his decision.
The matter OF the ressonableness ~ the pre-
vOus decisions On similar applications Tor man
damus brought up. and the decisions or
Justice Gaynor In the Seaside Athletic club
case. and Of Justice Smith In recent merry
go-round case were referred to Mr. Cooke said
that Justice Gaynor evidently msrdamusa "a
the Mayor 10 grant license to the seaside
Athletic Club because he did not read section
OF the code which gave the Mayor discretion In
the matter. This section had been shown TO
Justice Smith who held that the Mayor could
not be rnandamused. The decision OF Justice
Smith was more recent. and weight should be
given 70 II.
Mr. Jenks remarked that Mr.. Cooke must use
some method Of occult reasoning to know That
Justice Gaynor did not see that section OF the
code but there was really no comparison be
tween the decision Of Justice Gsynor ana that
Of Justice Smith. In the first place. the sub
ject Of merry go-rounds was not exactly sppn-
cable in the present case. and. besides. Justice
Smiths opinion mere memorandum
Justice GaynOr wrote a long ana eXhausuNe
opinion. There was cornpara,iVsY, "'',.
thought In the decision of Justice Smith IL
was too short. All other things being equal
Mr. jerks said he did not think that the memo
randum of Justice Smith and the opinion OF
Justice Gaynor should be regarded with the
same weight. .
They should receive equal consideration.
said Justice Clement.
with all due respect TO your Honor. 90
not think So" replied Mr. jerks.
Mr. Cooke jumped to his feet and SAID ne
wanted Justice Clement 10 know the reason
49,. AZ Tanks was irving 10 compare the opin-
ions of the two Justices. 1t was because ne
wanted the whole matter opened again so tnu
Justice Clement. in deciding the application
before him could base his decision on the ques-
tion Of tho Mayors discretion In granting a IL
censa and so nulllfy the appeal which had oeeh
taken from the decision Of Justice osborne
THAT is not So" exclaimed MT jerks ha'
no such idea
Mr. Cooke contended that It was So never
tbalaas and the argument continued 10 seesa"
back and forward until Justice Clement TOOK '"e
papers