New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1898-05-08
WITHOUT JURISDICTION.
STAY GRANTED BY THE SUPREME COURT
IN ERIE COUNTY VACATED "a
THE APPELLATE DIVISION
~ 70 HELD THAT THE PROCEEDINGS TO REMOVE
A COMMITTED or TIE PERSON AND ESTATE
rs NOT A PART OF THE ORIGINAL PRO-
CEEDlNGs-AN INTEREST

rs NOT PART OF THE ORIGINAL PRO-
CEEDINGs-AN INTEREST
ING DECISION
A rather unusual complication was p'o"s"
TO the attention Of Justice johnson IN t"e -"
prerne Court yesterday in the effort when u
being made to settle the affairs OF MISS Jane ~
Porter so that they will be more coihior'""'e
for her Miss Porter is elderly woman anu
the daughter Of the late General Porter "a
Niagara Falls. At her fathers death sNe ~"
heir 10 an estate valued at S3OUVuV one ""'
adjudged incompetent in Erie County anu "e"
eral Benjamin Flagler was appoln'ei Co'"''''''00
OF her person and estate. Miss Porter hau SUING
Disbursements with General Flagler as - '"'
,arsors with whom she should live. She was
then in Queens County, ana she nAoe "P'',
ton 70 the Supreme Court in Kings County for
the removal of General Tlagler as committee u
her person. being perfectly sausi''u WIN ~
MANAGEMENT Of her estate
General Flager did not oppose the apphca'ioh'
and tho ,uestion as to who should he the new
committee Of Miss Porters person was sent 10
. ro,eres Inst as the referee about 10 re-
mort an order staying the proceedings was
Granted by Justice Chi!ds. of the Ere count!
Supreme Court The referees report was pre-
scented to Justice johnson yesterday AFTERNOON
and The STAY was also produced Jusuce Io"'
son after deliberation. handed down memo
randun, holding that. although in his opinion inc
STAY was void inasmuch as ii was an oider oy
one Justice Of the Supreme Court overrnilhs 'he
order of another Justice Of the same court
was nevertheless not to be disresardeo'
THE STAY VACATED
The affair was taken at once before the APP
nsu,te Division of the Supreme Court Whlch
vacated the stay as being without Jurisdicuoh'
Presiding Justice Goodrich dissenting. Inc
Court says:
We are Of the opinion that the proceeding 10 10
remove committee OF IN, person ang esiate H1 al,
incomReten person Is mol sc pporamii,ee APP
pointed Consequently. the ProceeG nu1tv in the
Ssccnd ,Iudicia District and the one IN the CVr!
Of Erie in tie Eighth Judicial Distric' are
t. 80 nyoceedirg staying the prosecution OF 'ile
other proceeding. is. IN substance az s,r,ntcd in
cnv of Ere on the and fourth days
OF NAY We ere Constrained take tAis sum
mary course, fof me IeasoA VA" , t 6elv If not
necessarily lead to an unseemiy cqnnct " of ths
authority operating TO ;he nmd interfers
with the due adminis,ra,ion OF jusiise, tina art,ss
Al the time must be sag G unSs I'm Tor
,he,r acton even though they were without lesai
ywsicb ths PROCEEDINGS in Kings County have been
eSoy of the referee should be confirmed and
dectinc It's service by mail giving less man az th
State. distance Of over four hundred mics %as
certainly inadvertent a. there IS no ~ tS person
any urgency exists either in the care % ,,e br
- Miss Porter or to prevent the Mas'I neyfetIy
estate both Of which ,S t 10 naye come
The granting Of his order must n @g 9ee d u
who granted IT, an insdver,ence which We feel i. =
sured ne will be most ready TO Soirrc VIZ 10
.h motion ana give tho parties the full legal time
IN which TO iIterpose such matters as they sh'l
rSere is also grave dcub, whether the appea
lion in hs SSs os shSnd Of nSi aSa4 and whee
even such course should nol ne saKe'i i b r
ME R iOT pr Hs
Obtain full relief
The dissenting opinion by Justice Goodrich
is as follows:
dissent from the opinion Of my . associate les.
se;sg on thg s 9g S @ e pson Of the De-
periment has any power TO yaGaie tx pare tn ri,e
enplicaon is mad under Section G26 Of the Code
OF Civil Procedure which IN part Teaos "a iOS~S .
notice the party enjoned may Apply. upon the
papers upon which 1t was eIanted Tor an gree Sc
an application may be made. without notice, 20
the ,bs or y h ~eo ws ef w
or TO a term Of the Appellate Division OF the ST.
This section is embodied in Article III of Title
headed '"Injunctio2. and the; iitie IN my opi-
ed such upon a summons and complaint n an
action 1t has no rea9H wnq,evST TO suTH an
ton. The remedy 20 such order is an aI'-
Pea .Q h the 9Ts n' Of G the AGpense Dpon
vacate the same parte
Justice Johnson. after reading the opinion by
the Appellate Division and hearing brief argU-
ment. adjourned the case until next Saturday,
when It VIII be disposed Of finally.