Year: 1867

the suggestion aud on the request Of the
Comptroller The eiiec. OF that afidavt was such as
shoasd state as he o,d state IN In afiidavit what
actually took place IN this meter MT. Richard b.
Connolly being duly sworn, sid that he was Comp
toer Of the city of New York. and that he had stated
10 Fernando Wood the day which the orders
granted by Justice barnard removing the inj0nctons
and restraining Comptroller and his from
executing the leases Of that property tba he would
not execute said leases at that time; and upon said
Wood having asked him II peremp,ory mandamus To
that effect were served him whether he would then
execute such leases this deponent sad that he would
be ochged 10 obey the orders OF the Supreme Court =
Is every man would--obsy the orders 6f the court
The affidavit did not tend TO clear the incuties or


hs case as TO matters Of fact or 70 state facts correctly
before the Court As what should be done where the
court exercised this extraordinary power he would like
70 cali attention the provisions Of the Revised statutes
on tho subject Of andamus which seemed 70 be very
clear. "Whenever any written mandamus shall be


issued out of the Supreme Court Of this State the per-
son or tribunal 20 whom the same shall be delivered
shall make return to the first writ OF mandamus and for


neglect to do shall be proceeded against as provided
IN the thirteenth title OF the chapter Of this act me
act contemplates before man was compelled TO do
thing which doubtful that no should oppor-
UNITY Of laying before the court his reasons for
declining dec to DO it, ana therefore the .aS idea
be sent TO him, which should be nothing
more nor less than notice, whether he considered
that he ought ought not 10 do certain thing When
ever return should be made TO such writ the person
prosecuting such writ might demur plead 10 any
all material facts stated to which the person making
=
be demanded before jury had decided whether pay
ment was due on the ground stated because there
was no notice TO any officer OF the city, because that
writ Of mandamus founded upon proper facts,
and for all the other stated he claimed that
should be dismissed.


l. 7. wnliams, counsel for the comptroller remarked
that the writ Of mandamus had been issued without due
notice, was peremptory it's terms and committed the
comptroller TO the County Prison he did not comply
with IT.


Judge Allen replied at considerable length, ana went
substantially the same arguments as stated before
in tho HERALD He Ame In ohta in
AFFIDAVIT Of Mr. Shea the that occurred
between sr. Connolly and Mr. Wood


Judge Sutherand-I DO not think the affidavit Of Mr..
Shea would mako any difference ! could not adjourn
the case 70 get adayts TO whether not Connolly


Judge Allen-we have right to answer any aidayiss
on which they move. ftbe right was allotted to them
should be allotted 70 u.s. The effect OF delay Of one
or three days would be nothing In whatever regard two
affidavit affects Mr. Shea he should be allowed the priv.
ilege TO The affidavit ofConnoIfy does not con-
fct with the affidavit Of Mr. Wood believe it is just
they state that Connolly requested him that he should
get mandamus and saying that he could get by ap
plying for y and that il he got the mandamus he
Of the injunctions II everything is to be presumed
against Gs and our acts assumed as irregular ought
to be permitted TO show by the records affidavit of
Mr. Shea that they wero regular. The delay would in
jure nothing but the feelings Of counsel


Mr. O'Gorman-I have no feeling in the matter. and
cast no imputation upon anybody desire that the
question as TO whether these leases void
shall be fairly tired before jury before the Court
The Corporation Counsel has no feelings and does not
keep the article at all in any suit Q.aughter.)


Judge Alen-I am glad he has no feelings, and begin
to think he has no conscience. H.aughter.)


Mr.. O'Gorman-The Comptroller would be obliged to
execute the leases or 60 to jail according the manda
mus. Ng .s


Judge sutherand-In this case there was o mandamus
issued cr pare, without notice, and when the
up before contendsd that it would be best not to
support the idea that the Judge had any power issue
the mnndamus without notice. There is a distinction
between consent and notice. and that is important in
reference 70 this possp0nement. notice must be
served. II / postpone this IL will be virtually
admitting that this question whether Mr.. Connolly did
or did noi consent would be Important. ! do not
think IT u material 1t all think II would he indeco-
rous for the court TO adjourn this
issue that. II would not be doing justice to the
court The writ mot issued ct the regular term,
where the duties Of such administration or laws
deyoved upon tho Judge in that department. The
material fact s whether tho proper notice given
which the mpndamus was issued


After 6olne further discussion the Court granted the
motion 70 vacate the maudamus