The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-07-17
WRIT TO STOP DOCK INQUIRY.
JOHN FLEMING ASKS SUPREME
COGRT TO PROHIBIT 1T.
kellogg e. Rose Say for Him That He
Has Been Questioned About His Pri-
waite Affairs, with No Reference to Any
Crime so Far as He Can Discover.

The challenge issued by District Attorney
Jerome to stop his dock investigation by
writ of prohibition has been taken up
not directly by eN-Dock Commissioner
/ Murphy, to whom il was addressed, but by
John Fleming Of Brown 4 Fleming. SUI
| preme Court Justice Scott granted an order
| late yesterday afternoon requiring District
| Attorney Jerome and just ice Mayer 10 APP
! pear and show cause why the present John
| Doe proceedings, so-called, should not be
! discontinued as an illegal inquiry. The
order is returnablc next Monday morning
| in Part l. The District Attorney and
Justice Mayer will he served with copies
! to-day.
Kellogg 4 Rose. representing Fleming,
/! who was one of those suhpCenaed 20 give
test imonv in the investigat ion. obtained me
, order. |, calls upon Mr.. jerome nd Justice
Mayer to show why they should not be COM
! manded ito desist and refrain from all fur
| Their proceedings in an alleged criminal
act ion prosecuted as the People Of the State
| of New York on the information and belief
of William Travers Jerome, District At
tornev, and now pending before Justice
Mayer, agains, Charles J. Murphy, j. Ser"
geunt Cram and Peter +. Meyer
No stay pending a return OF the order was
! issued Yesterday. for the reason that the
dock invest igatio does not go on until
July %. L. Latin Kellogg Of counsel Tor
Fleming said Yesterday that it was high
time that an attempt was made to test the
lernlitv OF John Doe nvesti gations and
that this was the first attempt Of the Kind
Mr. Rose said that one of his client 8 reasons
for wishing this attempt to be made, was
because litigation Is pending between him
and his par, ner Brown for a dissolution OF
partnership and il the inquiry were 10
continue facts might he brought out which
could be used by Brown and prejudice his
interests in that suit. Fleming Is under
subpoena TO appear with the firms books
! oy July ~.
The order was asked for on the ground
| that there was no informal ion before
Justice Mayer charging the defendants
with any designated crime, that there is no
information before the Justice which would
| warrant such proceedings and that he
| had no power to Issue subpBnas for Flem-
| ing in the form issued. 1t is further con-
! tended that the Justice under the statute
| had no authority TO allow the District Az
! torney or any representative OF his 10 DO
present and conduct such proceedings.
, that he had no authority to exclude the
| dc PENDANTS counsel and that the proceed
/ lngs are not being conducted As required
by law and are in violation of the con-
stitutional rignts OF those subpRnaed.
Fleming in an affidavit saws that Assistant
| District Att orney Clarke. at his examina-
! ton on July y. ranged at will through
! the business transactions of petitioner y
! firm" and that not withstanding the alleged
| secrecy Of the proceedings a full report
! thereof appeared in the daily press on the
! day of such examination and the next day
| and thereafter, which report was stated
/ to have been received from Assistant
| District Attorney Clarke. in charge OF the
| proceedings, and from the nature OF which
report your petitioner verify believes and
alleges the fact to he that II could only have
cmanated from some one present ut the
| hearing before Justice Mayer, and that
| the only persons present there we're Justice
Mayer, District Attorney Jerome, Mr..
| Clarke and "A Stenographer.
The affidavit states that the examination
| was directed to no crime against any of
the defendants and that many of the ques-
| tions related to the private business of
! Brown & Fleming with persons with whom
| the Dock Department never had any con-
nection. Mr.. Fleming gives the names
of some of the persons whose business with
the firm was thus inquired into. including
| one McDonough. an assistant in the tax
office; Henry Mulvaney, formerly in the
| Office Of the Sheriff and Mary A. Delmour.
| He SAYS that many of the facts could he
used by his part ner; that any statement
of any crime about which he was being
examined was refused to him and that
| the District Attorney carried on the whole
proceedings and the Justice asked no
| questions.
Mr.. Kellogg recites in an affidavit state
ment made in the papers by Mr.. jerome,
in which he said that Whether the Com
missioners in either case have committed
any criminal act do not know and have
not stated, nor do | Know now lar they are
cognizant of or responsible for these
matters.
Mr.. Kellogg went on to say that the
statute distinctly provides that proceedings
| preliminary 10 the issue OF warrant are
| 10 he conducted by a Magistrate, without
the assistance of the District Attorney,
and are supposed to be unknown and kept
unknown from the public until the Magis-
/ trate acts,
Instead, says Mr.. Kellogg, "the District
| Attorney, confessing that he has no tnowl-
edge of any designated crime, ia permitted
by the Magistrate to be present with his
stenographer and to conduct proceedings
-
are made public in a garbled form con-
taipirg insinuations against the reputa-
ton Of men against whom nothing has been
discovered
Mr.. Jerome said Yesterday, after hearing
Of the order. that it brought up question
on which the courts had already passed
several times.
THE last time" said Mr.. Jerome, was
in the case of Mr.. Lewisohn. who, besides
quest ioning the right of the Court to com
pel him to answer a certain question, also
| quest ioned the legality of the whole pro-
ceedings Justice Scott did not uphold this
contention and the Appellate Division re-
fused to take il up. on the ground that Justice
Scott had virtually dismissed il. The
proceedings have been upheld in other
DECISIONS, and hardly think that Justice
Scott will see III to issue the writ Of pro-
hibition asked for
Assistant District Attorney Clarke. who
has been trying TO get William l. Kidney.
who is supposed to know some things OF
interest about the transactions Of tho New
York Contracting and Trucking Company
and the Van WICK Dock Board. got hold
Of one William Kidney yesterday II
| turned out that tho wrong one had been
subppnaed. but he said he was related to
the other and would produce him 80 that
| Mr. Clarke MIGHT u,ip.t inn him