The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-06-27
HART TO HAVEADAY IN COURT.
WILL TEST HIS RIGHT TO BE 4
SUPREME COURT STICE.
Acknowledgement Cunneen Grants His NJ.
piicatiOn to Bring quo WarrcntO Pro.
ccetiinss Against justices Goodrich,
Hirschberg, maddox and GarretsOn

ALBANY. June 2e.--Colerioge A. Hart
is to have his day in court to test his right
to the Office Of Supreme Court Justice in
the Second Brooklyn Judicial District, now
held by Supreme Court Justice Henry W.
Goodrich, who is the presiding justice Of
the Appellate Division Of the Second De-
partment. Attorney General Cunneen to-
day granted Mr.. Harris application TO bring
an action in the nature Of a quo warranto
against William w. Goodrich, Michael H.
Hirschberg, Samuel r. Maddox and Gar
rett j. Garretson to test their right, or
rather the right of one Of them, to hold the
Office OF Justice of the Supreme Court in
the Second Judicial District,
II ia conceded that three Of the Just ices
are riGhtfully in office, but 1t is said that
judicial determination Of the question in
voved can only be properly had by max
ing them all parties, so that the Court may
determine which one is unlawfully hold
ing the Office of Justice of the Supreme
Court.
Justice Calvin E. Pratt Of Brooklyn died
on Aug. 3, 1896. The general election in
that year was held on Nov. 3. The Consti-
tuition OF the State provides: when va
cancy shall occur otherwise than by ex-
the Supreme Court, the same shall be filled
for a full term at the next general election
happening not less than three months
after such vacancy occurs.
The principal question involved in Mr..
Hart q application was whe, her the vacancy
caused by the death of Justice Pratt should
have been filled at the general election in
1896 or at the general election IL 1897 In
other words. the question was whether the
day on which the death occurred must be
i ILL
and in constituting the words at the next
general election. happening not less than
three months after such vacancy occurs,
If the day of the deaf h should have been ex-
cluded. then the Pratt vacancy was not
constitutionally filled at the election in
1896, but could only have been filed at the
election Of 1897.
At the general election in 1898 the four
Justices above named received The highest
number Of votes cast for the Office of Jus
tice of the Supreme Court Three Of them
were undoubtedly elected TO fill vac ancies
caused by regular expiration of preceding
terms and one of them was elected or as
>sumed to have been elected TO fill a vacancy
caused by the death of Justice Pratt, al
though that was not so stated on any of
the ballots. At the general election of
1907 four or five votes We're ccst for Mr.,
Hart, specifying that such votes were cast
for him to All the vacancy caused by the
death Of Justice Calvin F.. Pratt.
In MS OPINION A'toFney-'eneral 'uhnceN
says
| The principal legal question involved is
should be definitely settled by the courts
| for the future guidance of State officials AS
well as interested litigants A denial by
| ME of this application would prevent an
authoritative decision of a grave question
| Of constitutional construction by the courts
under the method pointed out by the Court
Of Appeals as the only one proper for its
| settlement.
The gentlemen against whom the pro ceed-
ngs are sought are all acting as Justices Of
the, Supreme Court. and doing SO under claim
and color Of title 1t is well settled that their
acts and decisions cannot be challen ged collat-
orally, so no harm can come to the public
interests by the final settlement of this
question.
The application ia therefore granted upon
the applicant furnishing good and suff1cient
security to indemnify the people against
the costs and expenses thereof to an amount
equal to $500 for each and every party
defendant.