New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1903-08-04
BlSCHOFF DENIES WRIT.
BUT SUSTAINS FLEMING.
Justice Mayer Files Writ That Con-
tractors Examination Is Ended.

The application to Justice RischoT, IN the
Supreme Court, for an alternative writ OF pro-
hibition restraining Justice Mayer. Of the Court
of Special Sessions, from proceeding with the
examination of John Fleming in John Zoe
inquiry as to the actions Of Charles F. Murphy.
Peter F. Meyer and J. Sergeant Cram. the mem
bers of the old Tammany Dock Board, in grant
ing leases of docks to Brown & Fleming and
others, was denied yesterday by the justice.
The main ground on which the application
was made was that the Information laid before
the magistrate did not charge the defendants
with any specific crime
Justice Bisehoff says in his opinion:
p2 Gg Of fhe validity If 9e Of &
nesses dspeEdei upon an nfeImatioB 5efg aia
been guilty Of some designated crime. The neces-
sty that The crime charged, and as to which wit
nesses are to be examined before any warrant IS
obvious when the far-reaching possbi tiles of dis
penShg Win me reqGlIeneht are IN General
power OF inquiry to the grand jury, body perlodls
with die regard to the tights Of eitzens Is safe
guarded by the number of It's members " the
provisions of law regulating the substance OF Tue
coed are not to be strictly followed. or if q DIFF
ferent eonstruco on Of those provisions %G4I
would have but little reason for existence.
The justice says that as resort to the infor-
nation was denied to the relatoT his statement
that he was not examined upon the subject OF
the commission of any crime was all that was
required He says that taking the aileSa-
tons of the petition with the respondents
failure to submit the controlling evidence when
is peculiarly within their control. there would
be enough ground for a direction that the
alternative writ issue in order that the merits
of the dispute may be regularly determined II
there is doubt whether the allegation OF lack OF
lt1r sdiction would in the first instance, be sup
ported by actual proof negativing the jurisdic-
ton, this presents very substantial question
of law. which should be determined upon return
to the writ"
The justice continues:
The statute does not require the magistrate TO
conduct the examination personally. nor is he
called upon, matter OF law. TO admit an per
examination is held II otherwise. h9weysr a re
more properly met by mandamus than by prohibit
shall deny this motion. because the REALTORS
situation is such that he has no interest in the CON
tinuance or cessation of the proceeding TO which
It appears. without contradiction. that the re. re.
he is under 70 requirement to attend further TO
tne VIII al b ms co0cfPnsd and as to
him the dete rmination Of the questions sought TO
is therefore denied without costs.
In comment upon the decision L. Lahin Kellogg
said
Judge Bischof almost wholly sustains our con-
holds that the magistrate is without jurisdiction
TO issue a SUBPOENA when the information does not
/ Sneeify designated crime. He also decides that
the AFFIDAVIT of the District Attorney, stating
that there a sDecifc charge Of designated
crime. wholly insufficient in that IL only
a, co1cusioE. and that the information itself
3 should be open to inspection.
The alterna tive writ is denied purely the
ground tnat the examination is concluded The
fact that this examination said to be
cluded made known to the first time this
morning when learned that Mr. Justice Mayer
in any way. an af1davft that the proceedings, so
far as John Fleming was concerned. had been con-
Guided
II they had at the beginning OF these proceed
ings been concluded and we had bCen 50 in
formed of course this writ Of prohibition would
PROCEEDINGS and the fling of the af1daVt without
notice. three days after the argument would seem
tC Justify the onnion that the proceedings were
/ concluded to avoid the possible effect OF the de-
cision here asked for.
While the Judge Is obliged from the afhdavtt OF
academic vet the opinion Of the Court is full
rant for any witness defendant who is sub
poenaed to refuse 10 be examined and to obtain a
writ or prohibition to prevent his animation upon
the present state Of facts.
If any of my clients subpoenaed. and so de-
II is quite evident to however. that neither the
District ATTORNEY Magistrate Mayer knows OF
any speCihc designated crime. If they had. they
would have produced ii and presented il upon the
argument of tie
Judge Pischon Specifically holds that the claim
+ state the nature OF the crime furnish a copy
ct the TfOrmat'On is utterly urfounded because
the Inhibition OF the statute relates solely TO the
contents OF the deposition.