Year: 1879

ARGUMENT on THE MOTION TO yAcATE THE


STAY or JUDGE INdALLs-AN EARLY DEcIsIoy


PROMISED By JUDGE wEsTBaooK.


Judge Westbrook in Supreme Court Chambers,
listened patiently for two hours yesterday to the
long drawn out but technical argument OF counsel
the motion to set aside the stay granted by Judge
Ingalls, in the certorar proceedings ia n,ttuted by
ex-poliee Commissioner Nichols against Mayor
Cooper. Mr. John ID. Townsend in opening the ar
gument behalf OF Mr. Nichols, said that tho
first and main point to be determined the venue
OF the proceedings. He stated that counsel for
the Mayor had two occasions distinctly declared
the venue be in this district. After stating these
occasions and reading his affidavit oil the facts
preceding and accompanying the application made
by the Mayors counsel for stay of proceedings,
which differed materially from the amendments Of
the opposing counsel he dwelt upon the provisions
of the Code in regard to determining where the
venue properly should be- He insisted that the
ton to vacate the order OF Judge ingalls,, made in
the Third district. granting stay of proceedings
until the respondent moves. on the third Monday OF
September inst to quash or supersede the writ, is
properly made ut Special Term in tho First district
The stay he said granted by Judge Ingalls,. ties up
the proceedings until the hearing or a motion which
can neve be heard tor the reason that. having
been made returnable in the proper county. thi
Court cannot entertain it there. There was no gooe
ground upon which the stay was asked. the sols
reason being that il the respondent made return
his right to move or quash would be jeopardized
That this bad in law was he claimed. TOO we'll
settled to need citation or discussion. He urged.
further that it was not necessary that tbs
hearing upon return to writ OF cer-
tiorari should be had at the regular
Special Term the trial of causes, which does not
sit until October, is urged by the respondent.
Until very recently these writs made return
able at General Term, but after decision there they
have been made returnabe at Special Term, but by
rule 3s and by reference to the assignment of judges
and their Duties set forth in the register, which
is official it will be that writs of ccrtorari fall
within the class OF non-enumerated motions aud rs
such properly heard at the Chambers Special Term
No such return to this writ the respondent has
given notice that he will make if compelled by this
Court to make any, should be permitted. IL he has
not the original papers which he says he remitted
to the Governor let him make return of copies or
proper history of the proceedings in detail DIS by
law he is authorized to do. 1t was but justice to the
relator in these proceedings that further time be
given to the respondent to make return and proceed
to the hearing of the writ. In conclusion he said
that this motion he did not deem it ut all neces-
sary to discuss the proprety of the issuing of the
writ until hearing upon the return. He was en-
tireiy willing to stand upon Judge Westbrooks
reasons for granting it.


FOR THE MAYOR.


Mr.. F. N. Bangs behalf of the Mayor said in
reply that there nothing improper illegal in
their applying to and procuring from Judge ingalls,
q stay OF proceedings The order OF Judge ingalls,
showed clearly its face that the matter was
carefully considered before the order was is
sued. He gave his construction Of the pro-
visions of the code cited by Mr.. Townsend,
claiming that they justified the action and Judge
ingalls, made the order on proof and on his best
Judgment, and the order should be allowed to stand.
He said they not trying to delay the proceed
ings, but simply acting in accordance with the law
and protecting the rights of their client He main
tanned that, whether the heard in Albany,
in Schenectady in New York. the law would be
the same He urged that il counsel wanted the
order vacated the application should be made to
Judge Ingalls, and in some county within the Third
Judicial District At the close of the argument the
Judge took the papers. promising an early decisions