New-York tribune., 1902-04-21
DENOUNCES A MARSHAL.
JUSTICE SAYS LNSIALMEN1'
CASE SHOWS MANY ABUSES.
GOVERNOR ODELL INQUIRIES ABOUT
SHARKS BEFORE SIGNING
REMEDIAL BILL

Checked AFT the iails and defeated at every
turn the fnstalnent dealers 7 We fallen back
on the courts relying their ability to produce
perjured testimony to Withstand the ATTACKS
made upon them. Here. too. they nave sus-
tained notable series of defeats Perhaps tne
most important they have met with. though
came in the signature of the Civil Procedure
bill by the Governor last week Before signing
this bill Governor Odell wrote to Assemoiyman
Wilson who introduced it, and inquired II IT
would remedy the situation in the tnstaiment
cases The assurance Of Mr. Wilson tnat IL
was intended TO hit several phases OF this abuse
probably played some part in obtaining the oin-
cial sanction
Not less significant is the result OF the Lupia
case which was decided before Justice Hon-
man in the Fifth District Court on Friday. This
case is one of the most important as well as the
hardest contested fnstaiment case ever tried IN
this city II originally before Justice
Roesch when he sitting in the Second Dis
trict Court. 1t was brought there by John Pal
nieri who. as counsel for Lupia, asked for a
motion to vacate an arrest issued In the case.
In granting this motion, Justice Roesch deliV-
cred strong and telling denunciation Of the
instalment dealer the marshal and all con-
cerned in the proceeding, and recommended
that the facts be submitted 70 the grand jury.
The facts in the Lupia case, an account OF
which has already been published in The Trib-
une. follows:
Iupia bought watch on December % Of
last year, paying So down and agreeing
to pay 81 a week. Two days later he
was arrested. confined in the marshaPs office
for hours in a dark room without water and
| food and finally. when it was discovered that
| he would not pay unjust demands, fncarcerated
| in Ludlow Street Jail and kept there over
Christmas. More than this, ne was arrested in
Kings County by a New-York County marshal,
| who had jurisdiction there Justice Roeschs
: decision was on an action brought by John Pal
mierf to vacate the order OF arrest. as 8 result
of which a sum of money was extorted from
Lupia's aged father In his opinion the justice
says:
This is an order to vaeate an order OF arrest
and dismiss the action and all proceedings
therein The defendant never had his day In
court. never arraigned IN court upon his
arrest and never had any opportunity to ques-
. ton the validity of his arrest.
MARSHAL HAD NO POWER
THE defendant is a resident of Kings County.
He was arrested in that county on the order OF
arrest procured in New-York County, and exc
cuted in the former county by marshal Of the
latter The marshal had no power to make the
arrest and the proceedings Hereunder void.
Furthermore, the grounds upon which the de-
fendant was arrested completely disproven
by the motion papers. The defendant had pur-
chased from the plaintiff. instalment dealer.
a watch upon which he had paid So at the time
of delivery. and agreed to pay the balance IN
weekly instruments of 81.
Two days after the purchase and before any
instaIment had become due, the defendant was
arrested The co-surety upon the undertaking
was another instalrnent dealer. Charles Ludwin,
in III repute in this court. as the records show
The defendant after his arrest in Brooklyn.
was taken to the marshal's office in New-York.
He was kept there from about $50 o'clock in
the morning until about o'clock IN the after
noon. without having been arraisned In court,
as required by Section 1905 of the Consolidation
act Yet the court was in session. At about
o'clock in the afternoon the defendant was taken
to jal and kept there till the 26th day Of Decem-
ber 1901 when he discharged by the mar
shall making the arrest without arraignment in
court after the defendants father had paid the
plaintiff the sum Of S16.
Upon these points the affidavit OF Stromberg
is false on it's face. He states that the papers
were handed to the justice (Bolte). who marked
them settled will presently appear
not the case.
The defendant and all his people Qtalians)
had been informed by the plaintiff and the
marshal that the defendant would have to re-
main in Jail six months unless the money de-
manded paid After the defendant had been
thus released the plaintiffs attorney marked the
papers settled in his own handwriting After the
motion had been made. and the day before ie
was to have been argued, an alleged approval
by Justice Bolte placed upon the papers
underneath the writing mentioned, despite the
fact that l. and not Justice Bolte. actually held
court on the day of the date of such alleged
approval.
DISTORTION OF FACTS.
Upon these facts it is claimed that, the action
being settled the court has lost its Jurisdiction
To call such an arrangement settlement is to
utterly distort the facts These proceedings
throughout show a remarkable series of abuse
of process and power utterly unparalleled in my
experience. and which ought TO be submitted
the grand jury.
The motion Is granted with $40 COSTS"
! Terrified by this decision, the instalment deal
! ers decided that they must take some action. SO
writ Of prohibition restraining Justice Roesch
from trying the next case that came up. the De
Salvo case. on the ground that he was too preju-
diced to hear instalment cases fairly The prin-
cipal evidence they presented was this opinion
In the Lupia case, the motion was argued before
Justice Truax. who denied the motion, sus-
tanned Justice Roesch. and awarded him $50
costs. The case was then taken to Justice
Bischon- After hearing the case Justice Bis
chon denied the motion. and awarded 2oesch
/ Hiram a