New Britain herald., 1930-02-26

as corporation counsel Tn the aO- sence of Judge kirkham, who is out of the state, had advised the city treasurer that Day was legally elected, and papers signed by Clark should not be recognized. Day is restrained from acting, and Clark cannot perform, due to the ruling Of the acting corporation counsel. The city of New Britain is therefore without a comptroller, and no checks, bills or salaries, many Of which became due yesterday, can De paid for that reason. Mir. Blackall now moves to dissolve the injunc ton or give alternative relief. I understand that Mr. Day, through Attorney Gaffney has made a similar motion today.
 ITO give a clearer understanding of the entire matter, l might relate 2 few facts: Hanford l.. Curtis WIS elected Comptroller in April, 1923. time. and Mir. Clark was appointed acting comptroller in 1895 and had served at various times. In DeCerl- Der, 1929, he assumed office during the illness of Mir. Curtis, at the re quest of the mayor. Mir. Curtis diej in January, and Mr. Clark continued to act, acting up until last week. The court of common council last week nominated Day as comptroller, and passed a resolution which was referred to the mayor, who vetoed the resolution. It then came back to the common council where no aC- ton was taken and the meeting ai- journed, On the following night the resolution was passed over the veto.
 City Charter Quoted "Thc contention of the plaintiff is based on Section of the city char ter. which reads as follows | "'All vacancies in any of said offices shall be filled by the common council and from the same political party from which the former in- cumbent was elected, and the person so chosen shall hold office until his successor shall be elected and quail | fed
 | | the acting corporation counsel gave an opinion to Mayor Paonessa that ! the Section was capable of two constructions, the first that, if it is ! intended that the successor must be elected from the party which gave l Mir. Curtis the greater number Of votes, that his successor must be a democrat; the second that, if it means the party of which Mr. Cur tis was a member, that a rcpubli- can must be elected. Mr. bay is a republican"
 Question of Endorsement
 Was MT. Curtis a republican ?'' Judge Jennings interrupted. "Yes,' answered Mir. Calucn, "he vas republican but had been nom- mated by the democrats"
 You mean endorsed by the democrats" Attorney Gaffney cut in.
 No, 1 don't mean anything of the kind. For all l know, the re- publicans might have endorsed him." was Mir. Calnen's answer.
 To bring the issue to the fore, Mir. Gaffncy reminded him that the questions had to do with dissolution of the injunction and he asked MT. Calnen if he opposed dissolution Absolutely" was the answer. Blackalls Statement Counsel for Clark, Lawyer Black all, next addressed the court, say ing:
 MT. Clark was appointed acting comptroller by the mayor and con. | tinued to act until the election o1 Mr. Day. An injunction was then is- sued, restraining him from turning over the books. When MT. Day was elected, he went to MT. Clark who 1 turned over the office and received a receipt from Mr. Day. The citA i election does not take place unti April, and in the meantime the sit. nation is intolerable. Mir Clark now asks that the injunction be dissolved or he wants to know if he is comp trollcr. We arc moro interested ir the practical than the legal phases of the question:
 Gaffney's Contention
 Mir. Gaffney was next allowed tt state his case. He said:
 "Mr. Day and Mir. Clark have botl made motions to dissolve. That's al before you today The merits of tn. case can be determined in April. ex ccpting as they bear on the questions TOW before you. Clark and Day con cur, and the injunction should b. lifted.
 "The temporary injunction is two fold, restraining Day from acting ant Clark from turning over the books but the second came too late. Da, had already given a receipt for tn, books, on a form drawn by the cor poration counsel, before he wa served with the injunction, and wa the de facto comptroller at the time of the injunction.
 This is an eX-parte hearing, bu neither Day nor Clark received no ticc and no bond was filed. Angel NJ. PaoncSsa, as a citizen and tax payer, says he has suffered 'irrcpar able injury" l cannot see how.
 "The effect of the injunction is t' paralyzc city finances so that Angel NJ PaOneSsa may satisfy persona feelings and keep Day out of offiCC The entire situation has arisen be cause tho mayor of the city has scel fit to tic up the city, financially.
 "Mr. Calncn has come here to tr title to office. This is not the propc procedure in trying titlc-it shoul have been done by quo Warranto pro cceding. Mr. paoncssa should hay been the one to come here and as) that the injunction be dissolved. l never should have issued.
 Calls Situation Serious
 "The harm in this case. your hon or, far outbalances the feeling o qualification. Everything points { the fact that the injunction shoul be dissolved. If it is dissolved MI