New-York tribune., 1902-12-10
ASKS TO HAVE STAY VACATED.
Corporation Counsel Rives Raises Constltu-
tional Point.

Corporation Counsel Rives appeared before Jus
tee Leventrtt. in the Supreme Court YESTERDAY,
II ask that the stay granted by Justice FltZgerao
restraining Fire Commissioner Sturgis from re-
moving Fire Chief Croker pending the decision of
the Appellate Division the question OF MS re-
moval be vacated. The motion TO vacate the
stay strenuousy opposed by John J. belahy'
counsel for Chief Croker. Justice Leventr1tt at
the close of the arguments reserved his decision
Mr. DeIany wanted Justice Fitzgerald to pass
the question of stay, but justice LeVeh'FlIl
said that he no reason why he snouid not near
the motion as the stay had been granted ex-parte.
I'VE now ask your honor, said Mr.. RiEes, 10
vscate that stav on several grounds The allega-
items made that Commissioner Sturgis was sulded
during the progress the trial by bias and preju-
dice. and that evidence was admitted Whieh was
incompetent are of the usual nature in such cases
The petition. however. goes further and presents
certain matters in connection with a controversy
between Con missioner Stursis and Chief croker
in August last before these charges were mace
against the chief. These matters are presented
TO show that the commissioner had bias ana pre'u-
dice and was not inclined To be faiI 20 Croker
II have not been able find any reported case
where any such stay has been granted before, h
had no right 10 grant it. and also claim
that the section OF the Cods OF N ISi stsy 4. in
Violation Of Article X Of the revised constitution
Where a man is removed from his office in case
Of admitted compliance with the law the court b
statute has the effect claimed fer Il BY the ret35 ia or
and his counsel. then the legislature steps III III
violation of the constitution and Keeps sucn
in Office after he has been removed ana
without any adjudication whether the proceedings
under which he removed were or were not NE
gal We claim the court has not the power 20
keep IN office under such circumstances and
that IL never the intention or the legislature
that the law should apoly 10 cases OF this sort"
MI Rives said the allegations OF bias and preJu-
dice on the part OF Commissioner Sturgfs had no
weight, as the Commissioner the only person
could try Croker. end even II he had permitted
the deputy fire commissioner TO take the tesu-
uony. he would then nave had TO pass on 1t before
deciding the case.
Then you consider Justice Leventritt said,
the section of the code empowering the court 10
grant such stay should be treated dead let
ter
Mr. Rives said he might be wrong IN that. as he
considered stays might be granted In the cases OF
inferior officers where the inconvenience created
by their remaining in the department pending ap-
peal was slight but Croker's retention would cause
much friction ana decentralization, after what had
occurred.
"As to the application for the stay being made
ex-parte," Mr. Delany said. Commissioner Sturgis
did not announce his dismissal OF Croker until after
o'clock on Friday evening and his order was to
20 into effect early the following Monday morn
ing so that he merely had an hour and a half on
Saturday to make application TO the court"
The only thing Mr.. Croker cares for In this
world cried Mr.. Delany. ''is his reputation a
fire fgflter but Commissioner Stures comes In here
and would sIander him before this court desire
to make no irnputaton upon the Corporation Coun-
sell because l know he is actuated bv the best
motives but I desire to show the injustice and in
consistency exhibited by Commissioner Sturgis.'