New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-03-28
.O'BRIEN WON'T SERVE.
OFF THAN COMBUSTION.
Er-Justice Pleads Iu Health
Dauid Mcclure Substituted.

Ex-Justice Morgan ]. O'Brien, who was ap-
pointed member of the commission in lunacy
which is to examine Harry X Thaw and decide
as to his sanity, created CONSERVATION yesterday
afternoon by declining the position. This was
| after Mr.. OBrien had appeared in the Supreme
Court in the morning with the other members.
he gave. in his letter Of declination. i'll health
ana previous engagements as the reasons for
| refusing to serve
| In Mr.. O'Brien's place Justice FftzGerald ap-
pointed David Mcclure. a we'll known lawyer.
The change in the personnel of the commits
sion is a great surprise to the District Attorney
and counsel for the defence. and for time they
We're in a deep quandary The new commission
had a two-hour session behind closed doors. No
examinations were conducted and chairman of
the commission was not even appointed. 1t was
announced. however. that there will be a public
hearing given by the commission this afternoon
in the Criminal Branch Of the Supreme Court.
Hereafter. 1t is understood. the hearings viii be
public Any physical or oral examination OF the
defendant however, viii be in private
MYSTERY IN RESIGNATION.
The resignation Of Mr.. OBrien and the ap-
pointment of Mr.. Mcclure were attended by
somewhat mysterious circumstances. Mr. O'Br1en
was in court during the morning, apparently IN
the best Of health. He had previously agreed 70
serve and had accepted his appointment, al
though he had not been sworn. At the adjourn
ment OF the morning court session it was an
nounced that the commission would meet at
o'clock and counsel on both sides were so nou-
fed Considerably before that time Mr. Nc
Clure seen TO go into the Justices cham
bers. Shortly afterward it was rumored that
Mr. O'Brien would be delayed and would not
arrive before o'clock.
II was shortly after that hour that Edward
Carroll. clerk of the Supreme Court. went TO the
! corridor, where the reporters were waiting. and
| announced biefy:
Mr.. OBrien has declined TO serve on the COM
mission In his place Justice FitzGerald has
appointed David Mcclure"
There was not a word Of explanation but in
few minutes word was passed around that the
letter Of resignation would be read 10 reporters
In the court.
TEXT OF LETTER OF REFUSAL.
Clerk Penny read the letter. which as
follows:
oBrien. Boardman. Plat, & Downing.
March p. 1907.
Ny Dear Judge FitzGerald: When you honored me
the commission in re Thaw and suggested that By
doing / would he rendering public service
acceded 70 request. Notwithstanding my dis
Upon reflection however am reluctantly forced
70 the conclusion that. IN view Of the present con-
ments previously aseepted and involving Oblga-
cline Re sar--ioe much an ] regret this decision
In arriving az this determination I assure you
pabllc Of the service which you have so kindly re-
quested me to undertake. and my conclusion has
tho present condition OF ms health and other obl-
ments Of esteem and appreciation OF your express
sion Of confidence. remain gratefully yours.
MORGAN J. O'BRIEN.
II was learned that at least an hour before the
letter made public Mr.. Mcclure had been
sworn in and was then in session with the
commission Mr.. Mcclure refused 10 discuss the
matter any moro than to say:
oh was drafted. guess"
OTHER MEMBERS SILENT.
Tho other members OF the commission. Mr.
Olney and Dr. Putzel were silent.
II is understood that prior 20 the calling OF
court In the morning and excusng the jury. after
delay OF an hour, Justice Fitzgerald had con-
ferred with the commission had outlined tho
case 70 them and told them what he desired IN
their examination. 1t is probable that Mr.
O'Brien found the work would be too arduous
and long and thereupOn declined TO serve.
After the announcement OF the declination was
made counsel for the defence acted in per-
turbed and mysterious manner. The electric
brougham In which Mrs. Evelyn Thaw goes To
the Tombs driven at rapid rate to the
door OF the Tombs, and a confidential clerk of Mr.
Hartridge jumped I'm and driven at full
speed downtown. Mr.. Hartridge a moment after
ward left the Tombs and fairly to the
Criminal Courts Building where ne was in con-
ference with some OF his colleagues.
The change In the commission has left the
District Attorney wondering what the next move
viii be He does not know what witnesses to
summon what information the commission may
want or anything else 1t is considered likely
that the session this afternoon will be almost en-
tirely one OF argument. Adjournment will un-
doubtedly be taken until Monday.
ORDER APPOINTING MCCLURE
The order on which the change in the commits
sion was made was follows:
1t appearing that the Hon. Morgan ]. oBrien.
heretofore appointed member Of commission 10
inquire into the mental condition of the defendant
above named. declines TO for reasons shOWD
in the letter hereto annexed the order herein being
hereby amended by substituting the name of the
Hon David Mcclure: who is hereby appointed in
the place and stead of said Hon Morgan j. Brien.
cfSect JAMES FITZGERALD
Justice Of the Supreme Court.
The morning session Of the court lasted less
than five minutes, although it was delayed over
an hour in beginning. The entire Thaw family.
including the mother and wife and two sisters.
were in court. and new relative. William Thaw
Sd. a half-nephew. was also present Howard
Nesbit and two friends as young as himself
were also in court. Aside from them there were
few spectators
WIFE SHOWS STRAIN
The strain was particularly noticeable on Mrs.
Evelyn Thaw yesterday morning. She was hag-
gard and her complexion very sarlow. Thaw.