New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1904-01-03
TO FIGHT FOR THE BENCH
RIVAL JUSTICES NAMED.
NcClellan's Act Nay Result in At
tack on Nc4UOy.

Mayor Mcclellan yesterday swore in as justice
of Special Sessions in the Second District. which
comprises Brooklyn Queens and Richmond.
Thomas ". Fitzgerald, whose term supposed
TO expire at midnight Thursday. In doing this
he precpitated a conflict for the seat the Spe-
cial Sessions bench between Appleton L. Clark. Of
Staten Island and Justice Fitzgerald. Mayor Low
on Tuesday appointed Mr. Clark TO succeed Justice
Fitzgerald Justice Patrick Ready. of the same
court. was appointed under similar circumstances
two years ago by Mayor Van Wyck
4 legal battle for the place will take place
/ between the two appontees. Justice Fitzgerald
will he on hand tomorrow morning when the court
opens in Brooklyn. and will at least try take
place on the bench. Justice Clark. who also has
been in. will be there well. and will try to
assume his duties. Doubtless the legality of jus
tce Fftzgeralds first official will be attacked
IN the courts
II Is understood that Corpora ton Counsel DeIany
advised Mayor Mcclellan that Mayor Lows ap-
pointmeut II Mr.. clark null and void It Is
said tnat NIr. p-!any holds that the State con-
tuition . dcs that the terms Of office Of all
gsnuuicipa 5.els nts shall expire with the end OF
each odd noeIed year, and that that provision
would make Mayor Low term end with midnight
or last Thursday. and not at moor on Friday This
wouiL make Mayor Lows term end at the Same
time as Justice Fitzgerads and would leave
Mayor Low without authority to appoint a sue
cessor to Mr.. Fitzgerald 1t is understood that
Mr.. Deauy contends that the charter provision
that says that The Mayor shall hold office until
effect in view OF the provision in the State
constitution.
Another point raised by Justice FitzgeraId's
friends is that Mayor Low should have waited a.
did Mayor Van WyCk. until the forenoon of the
first day of tine year. instead of making the
appointment several days in advance. This Mr.
Fitzgerad's friends assert, was appointing his sue
cesSor in futuro.
Justice Clark's friends that Mayor Low
acted within the law and his privilege in ma king
ffa 1arf IN AZ NJ fha NF,feo
cancy. This Mayor appoints members 10 the Board
of Education a month in advance of a vacancy in
the board. 1t is understood that Mayor Low
suited Corporation Counsel Rives before he ap-
poiEG,d Justice Clark When the latter was seen
yesterday afternoon. he said:
''It was of course. great surprise TO learn
that Mayor Mcclellan had appointed Justice Fitz-
gerald to the place I supposed mine under
to formulate any definite pia of action. No papers
In the case have been served on me shan appear
TO assume Office Until then Go not think 1t
The action taken =, Mayor Mcclellan yesterday
surprised and angeSed>~he friends OF Mayor Low.
L mas EeorS McA8os egbT Wod at once
be attacked. as an act of retaliation. McAvoy is
drawing salary as a retired policeman, and at
the same time he expects TO receive a salary as
deputy cormissiioP9nler iP9l Before McAy0y was ap-
many leaders. The move OF the friends OF Justice
sion and it was predicted last night that Deputy
Commissioner McAvoy would have TO fight in the
Mayor Van Wyck appointed Justice Patrick
Keady the Special Sessions bench, but he did
not make the appointment until the morning of
January l. IT, however. the position OF Mayor
Mcclellan is well taken that the Mayors term eX-
pires midnight, Mayor Van Wycks appoint
inent void. as he made II after he was an eX-
Mayor. This has raised the interesting point of the
validity OF all the sentences passed by Justice
Ready and his other acts in the last two years.
The question was raised whether all the prisoners
stn serving sentences imposed by him could not
get writs of habeas corpus and be released.
Justice Ready said last night:
consider that my appointment was perfectly
legal and do not fear anv action that may be
taken by the to test the power of the Mayor
10 make appointments on the forenoon OF the day
his successor takes office
The Court of Special Sessions is scheduled to sit
in the Atheneum. in Brooklyn. tomorrow. Justice
Ready presiding At that time there will arise the
question as to whether Fitzgerald or Clark shall
sit 1--WE shall have decide that problem
Monday" said Justice Ready last night II do not
know that we have any power to say who shall
Sit