The New York Herald Newspaper, February 14, 1874, Page 8

THE COURTS. |2253 Important Question Affecting ternal Revenue Assessments, TRE EXHUMATION CONTROVERSY. The Congregation Shearith-Israeb as an Orthodox Body—Dogmas Sec- ondary to the Laws. BUSINESS IN THE OTHER COURTS. ! 4 nuscrice comrt Civil Judge Aster His | rue Aneged Larceny of Gold Certificates Divoree Suit and Question as to the County Jurisdiction of Children — Important Horse Suits—Commissioner Char- lick’s Action for Libel. Yesterday the Unitea States Circuit Court Grand Jury found @ bill of indictment against Charles A. Austin, master of the American vessel Inginac, who is charged with having cruelly beaten and ill used some of the men of his crew. Other indictments have also been found; but as the parties therein mentioned have not yet been arrested their names, udder a rule of the Court, are withheld. An application was made yesterday in tne United States Circuit Court, belore Judge Nathaniel Ship- man, on behalf of Mr. isaac H. Bailey, as recetver of the Commonwealth National Bank, of this city, | for an order empowering him to sell, either by public or private sale, and to the highest bidder, the banking house and all the personal and real estate of the bank in question. The order was granted, It states that if the property mentionea be sold at private sale ir must be disposed of sub- ject to the sale being confirmed by the Court. Commissioner Shields has discharged from cus- tody a man named Joseph Kendall, who bad been committed avout a month ago in the United States Cireuit Court, before Judge Benedict, on ® charge ofsending an obscene article through the mails, and sentenced to pay a fine of $250. Kendali, not being able to pay the Mine, and having suffered thirty days’ imprisonment, was liberated under the act of 1872, which provides for cases of this char- acter. Commissioner Osborn discharged Mary Cronen and Johanoah Crimmens, who had been charged with passing a $50 counterfeit bill. It was con- ceded that Jotannan had passed the note, not knowing it to be a counterfeit, Yesterday, in the matter of Jacob M. Duncan and Simon Poey vs. The steamer Francis Wright, Judge Blatchford rendered a decision refusmg an application made on behalr of the Hbelants for a rehearing. The libellants desired to present evi- dence ona point on which, they stated, the deci. cision of the Judge turned when he rendered judg- Mest, Some time since, that the livel must be dis- missed. The Judge says the case is presented as merely one of oversight, and he does not think that a retrial in suci a case, in an admiralty suit, ought to be allowed. An appeal will give a retrial in the Circuit Court, and there the omitted evidence can be adduced. | | THE INTERNAL REVENUE LAW.. Poets An Important Question Affecting Assess- | ments—Decision by Judge Nathaniel | Shipman, | Yesterday, in the United States Circuit Court, Judge Nathaniel Shipman rendered his decision in the case of James Barker ve. William B. White, | The action in this case was bronght to recover | $3,773, This amountof money was paid under protest to the defendant, who had been Collector of the Sixth district. Under the act of July 20, 1868, the plaintiff took out a license as a distiller, and in the mouths of October, November and De- cember, 1868, and February, 1869, he presented to | the Assessor the returns required by law. On these returns a0 assessment was made and sent to the Collector, and the piain- tit paid the amount of the assessment. In | July, 1869, the Assessor, following the instructions of the Commissioner of Internal Revenue, made a reassessment for the months already specified. | ‘This reassessment increased the first assessment | to the sum of $3,773. This amount, as above men- tioned, was pald under protest. The case came on Jor trial in the Unitea States Circuit Court, before Judge Nathaniel Shipman, Mr. Goodlett, United ‘States District Attorney, appearing jor the govern- ment and Mr, ‘Thomas Harian jor the piaintif. On the trial it was conceded that the returns made b: the plaintim® were correct, and that the assessmen proceeded upon the supposition—a belie! of the Commissioner of Internal Revenue—that the origi- nal assessment, a8 made upon the returns, Was erro | neous in consequence Of a mistake made by the Col- | lector. The Collector gave proof of the assessment, but did not offer any testimony as tending to show wherein the imputed error in the orginal assessment consisted, Two [erm eka | axpayer has made a on these facts—(1) When the correct return and the assessor has made an erro- neous assessment thereon, Which assessment has been paid, has the assessor, under the law, power to make a supplementary assessment? (2) Is the reassessment presumed to be correct without affirmative proof on the part of the government that there was an error In the original assessment? ‘The decision of Judge Shipman on these points is in favor of the plaintiff. He decides the first point inthe aMrmative, provided that the assessor makes the supplementary assessment witnin the time (filteen montis) stated in the ninth section of the act of July 13, 1866. The Judge answers the second question in the negative. THE EXHUMATION CONTROVERSY. The Congregation Shearith-Israel in Dificultics—The T. ts of the Orthodox Secondary to the Laws of the Land— An Interesting Case Decided. Before Judge Barrett. The congregation Shearith-Israel, of Fifth ave- ue and West Nineteenth street, in this city, owns ® cemetery on Long Island, part of wich Is laid out in plots, which the trustees sell to persons who may desire to purchase them. The sale is not Of the fee, but only grants an exclusive privilege of interment to the purchaser, which privilege upon his death descends, by the terms of the egreement, to the ‘next of kin.’ Under this regulation one Barrow Benrimo became the owner of plot No. 104, in which several of his Selatives were buried by his consent. He aied, leaving a widow and one child, an infant, for whom Mr. 8. Isaacs is guardian. He also | left ® mother and brothers and sisters, COURT OF COMMON PLEAS—TRIAL TERR—PART 2. pevigihcisy GU te ter an arte | Upon’ request of ts Barents,” but withour | Post-Mortem Test of a Horse Warrantee, Sean ts tin mee: eae ins tne Omoer | the consent of the minor clild or her guardian, Before Judge J. F. valy. | Teading to the nhliway apeti found the door | the trustees permitted the body to ve interred in pilot No. 104. Learning of this infraction of the nights of the minor to control the plot the guardian wrote to the trustees, threatening 4 suit to com. pel disinterment of the remains so buried without consent and for damages for the trespass, Tnere- upon the President of the trustees convened the Board for consultation. The plainuit, Daniel poaeeey wae then a ~ yl dl, iy Legh and urged his colleagues uot comply wi e re- quest, but to stand @ suit, Judge Cardozo ex- plained that the law was against them. The Board assented to his statement of the law; bet still, by a tie vote, @ resolution to disinter was defeated. Thereupon Judge Cardozo, being unwilling to in- votve the macwecs in a litigation, resigned, by Jeter, tis position in the Board, Upon this the President called on the guardian and, learning that nothing but @ resolution recog- nizing that 3 trespass had been committed and that the body should be exhumed would appease, she again Couvened the Board, who, with the ex- ception of Daniel Benrimo, voted ‘to repair the error tn the ver teqnired, Thereupon Daniel Benrimo resigned lus trusteeship and sought an injunction in the Supreme Court, Chambers, before Judge Barrett, to prevent the disinterment. But if omplaint said nothing about the fact that the #olé next Of kin Of Barrow Benrimo was his {nfant daughter, The compiaint avers that the congre- asso Shearith-Israel is an orthodox one, and Sint tte against their tenets to remove or exnume a bw when once interred in the sacred soll Of a consecrated cemetery. To that part of | the complaint Mr, Jules 8. Abecassis, the Prest- Gent, replies in his aMdavit thu: That although it is true that disinterments are against the tenets Of orthodox Hebrews, yet there are some excen~ tions to the rule, not necessary to be stated in the | rosent instance, save only that obedience to the po Oe which they dweti and prompt pe heat: Sudaism recornnet at # @ doctrine of orthodox @orsas aruie to wh ‘The motion on the c ch there ta MO exception.” ter to show cause Why an | serving his decision. | | costs to abide the event. are put to a certain extent on their goo and inculeated by its profes- | the fears now iibetlous. John ia made rare | Qn exhaustive | ment in sup) ‘of she demurrer, and spoke loved ones, af feats of the deep of tne’ joanne ; be b+ press ee = mj My help the Wee au error whieh | -Mayor Hall, for the tid, made tf woald, id, | legal argument, and at all the popul have righ re- | He contended upon ‘of Sanderson vs. the | solved { Mercury, in York Appeals — i to do, | We denounced r pose | ports. ryt ta K, ono zor ems jury had any tne premises osieoted to the | pableol an thiurious oy A legal ty interment oi the pisintid's child, had presented the aaqane te Court as wantonly interfering wie deed. kf 2 mal Judge Barrett denied the motion to continue the injeaction, abd the motion to vacate the te: tion Was granted with costs, Deessons, Ex-Judge y Mor the defoudants ; Mr. By Jndge Robiagon, rigon Jor plainwam The People, &c., v8. Miller.—Cortified copy of or- BUSINESS IN THE OTHER COURTS. SUP EME COURT—SPECIAL TERM. Salary. Before Judge Van Brunt, Anthony Hartman vs. The Mayor, &c.—The plaintiff, who ts @ Judge Of one of the District Courts in this city, brings action to recover large arrearages of salary at $10,000 per snoum, corporation answers that the last charter reduced the salary to $5,000 and then ratsed it to $3,000, ‘The plaintiff demfars to the answer and cietms tnat | the charter cannot affect the salary of the plain- | taf, wno t3.a Judge, A, Oakey Hal) argued in sup- port of this theory that the Civil Justices never were component parts of the lo: verpment of New York, and tp an act to reorganize it could not be constitu embraced, He traced the bis- tory of the jt Courts from colonial times | through a Denys) of acts. Mr. D, J. Dean, for the corporation, contended that the very salary Claimed by piainti® was fixed by a similar local act; that if the act of 1373 was uncoustitutional then that of 1871, giving the $10,000, was equally bad. Some discussion tollowed upon the titles; ; One being to make “provision"’ for the govern- ize” the government. Decision was reserved. SUPREME COUAT—CHAMBERS, Interesting Divoree Suit and Question as to Jursdietion of Children, Before Judge Barrett. Ferainand Mayer and Eleavora Mayer were mar- ried in May, 1846, at Portchester, N.Y, They have had thirteen children, ten of whom are living, six being still minors. Some time since Mrs. Mayer brought suit fora limited divorce on the ground of alleged ornel treatment. dhe avers in her amdavit that Mr. Mayer has repeatedly treated | her with violence, and threatened to murder her | and the younger children and then commit sui- maintenance for herself and cuildren, setting | forth that he owns a house and lot in Brookiyn, valued at $15,000, and $70,009 employed in a litho- graphic business im this city. Mr. Mayer makes a general demia! of her allegations, excepting as to property, which, he says, nas been considerably reduced through the present litigation. He de- Clares that he 18 amxious for a peaceful separation, ; and some time ago he proposed to her to sell his | iy, settie ome-hird of tt om her and the rest | Forest, and being well educated and cared for, | The case came up iM Court yeaterday on a motion | to bring these minor children within the jurisdic. | tion of the Court. After ap extended argument | by Mr. Kanffman for the motion and Mr. Beneville | in opposition, Judge Barrett took the papers, re- Decisions. | By Judge Barrett. Benrimo ys. Congregation Sheartth-lsracl.—Mo- tion to continue injunction denied and temporary injanction eee ee with $10 costs, Si j . | Starin vs, Weizel.—Motion granted, and i McLaury vs. Mille.—Motion denied, with $10 costs. Opdyke vs. Proritz, Rogers ys. Justh.—Memo- | randums. | In tue Matter of De Forest.—Report confirmed and order granted, ‘rhe People ex rel. Ferguson vs. Green,—Motion i denied. CUPERIOR COURT—TRIAL TERM—PART |. Suit to Recover M y Lost on a Horse ~ Reece. Before Judge Spier. Among the multiplicity of races run at the fail | meeting of 1871 on the Fleetwood track was a | trotting match in harness, best two in three, mile | heats, between the sorrel gelding General Sher- | man, entered by Thomas McGuinness, a gentleman well known among borsemen, and the gray geld- | ing Big Judge, entered by Dennis Laney. Michael | Mahoney made the match on behalf of Luney and { Pp. J. McGuinness made it on behalf of Thomas | McGuinness. The amount pending on the race | was $500 stake and $100 side bet, Robert O'Calla- han Was the stakeholder, In the race Mr. McGuin- ness’ horse won in two stratgit heats, and to him ; the stakeholder gave the loney, Mr. Tallman, superintendent o! the track, who acted as judge, having declared General Suerman the winning horse. Mahoney, to whoin Luney assigned his | claim, bas been & long time trying to get back the | lost $300, he hav rig rigs two or three suits to | recover the same, but being defeated each time. ; But Mr, Mahoney has perseverance, and 80 he con- | tinued the litigation, the iast in the series of | | triais thus far taking piace yesterday ‘an this Court. The sult was broaght | under the statute prohibiting betting at horse Taces. Of course, r this statute, he had only to walk over the tra The defence did not deny the betting and the alleged disposition of the stake by the stakeholder. They atcempted to in- | troduce as evidence, but it would not be received, the affidavit of Jolin L. Doty, the well known horse trainer, as also the affidavits of some dozen others, proving that the horses run were Uhe ones matched ani upon which the bets were made; but this proof would have made no differ- ence, the suit, as stated, having been brought un- der the gaming law. The testimony was pretty Much @ repesilion of that at the previous trial, Judge Spier, in charging the jury, said that it | made no difference whether there was a race or no race, The only question for them to | decide was whether a bet was made, whether the money was placed in the hands of the stakenoider, | and whether the same was given up withont the, | authority or direction of the plaintiff. The sub- — stance Of the charge, in short, Was that the money could be recovered under the gaming act, and | under this charge a verdict for $351 was given for Mr. Mahoney, On the rendition of the verdict no- tice of appeal was given. Mr. McGuinness ex- Presses his determination to carry this case, if | necessary, to the highest courts, He does this on | principle and as 9 test case. Of course the turt- | men present expressed without reserve their in- dignation at the mode pursued tn this suit to re- | cover money lost ob bets, and say that a final | decision is reached they do not propose to make bets with achoolboye. SUPERIOR CCURT—SPECIAL TERM. Decisions. By Judge Seagwick. Clements va, Jones.—See decision with Clerk at Special Term. Rose ve. Combes.—Order of reference. By Justice Monell. Atwood vs. Lynch.—Extra allowance granted, Some six years ago William E. Waring bought a horse of Theodore H. Schultz. Tne horse was rep- resented as something extra as a trotter and per- fectly sound and $650, was paid for him. Mr. War- | | | ing says that he drove the horse only four times | and then not faster than at a four minute galt, after which he developed 4 congh. He placed the horse under the best veterinary treatment, but the | | animal shortly after died. A post-mortem examin- | ation was made, showing tubercles on the lungs. | Upon this Mr. Waring claimed the money he 0 | | for the horse, and, Mr. Schaitz refusing Yo pay bus { | suit was brought ‘for the sum. As in nearly all horse cases there was a good deal of contradictor. | testimony, and even veterinary doctors, like ordi- | nary doctors, disagree, The trial ended, however, | in @ verdict of $400 for the piaintif, with interest | from date of purchase, which was about equivalent vo getting hia money back. COURT OF COMMON PLEAS~SPECIAL TEAM. Police Commissioner Charlick's Libel Sulit Against the Evening Post, Before Judge Robinson. | Argument was heard yesterday in this Court on the demurrer of the proprietors of the Evening | | Chartick. This was the alleged defamation pub- | lushea at the time of Mayor Havemeyer's appoint. , ment :-—""Thoro is good reason for disappointment, | if not anxiety, when so important a department of | the municipal government as that of its police | force falis into the hands of such men as Messrs, Smith, Uharlick and Gardner. These men, however, | 4 behavior, | and have, therefore, a pecuitar opportunity | Grace in virtuous company. They may tnin Agjanction should not issue was the mM heard, x-Judge Car Appeared for the Ryanqusee. and mado & tOUChiDg wiusion to nis coMMeciion it better worth there while to acquire @ |} @ood name than anything else, and to | to earn @ high reputation, There fs savin cdisaouoint by & Caithsul discnarge of their duty, | ment—a recent statute; the other, to “reorgan- | cide. She #is0 alleges that he is given to habits of | White drinking there metther Mr. Jarvis drunkenness aud tireatens to dispose of ma prop- | Hor Mr. Conklin saw Mr. Craft exhibit erty, abandon Rer and go to Germany, | ®5Y gold certificates. A number of citizens ‘The’ children, she says, are now at a | testified to the good character of Conklin. “peasauts’ inn” in ermany, where she | Ex-Ju Cardozo summed up the evidence, cannot sew them. She asks sumMcient | ‘launing that there was not any legal proof to sn3- | was sent to the State Prison for three years. Post to the claim for @ libel by Police Commissioner | 7), to them,” | | iamed. He claim under sam ity, | that e publisher could wot Yeu Ei encode ee tion, with t ‘t of jury $@ pass on the sendoucy to acy to injure reputation, Deciaion reserved, °° r sea ae cine eo vs. The man ar Company.— lotion denied, $10 (See memorandum.) COURT OF GENERAL SESSIONS. by a Deputy Sheri@—Tme Case Ad- Journed till Mi aye Before Recorder Wackett. The trial of William Conklin, an ex-Deputy | Sheriff, charged with grand larceny in partici- | ) Pating in the alleged theft of three $5,000 | wold certificates trom Burr 8 Crafs, on the 18th of December, was resumed yesterday. Dis- | trict Attorney Rollins called Giosa Gianini, the bar- | Keeper at Deimonico’s, who testified that Mr. | Cratt, Mr. Jarvis and others were drinking | at the bar; that Judson Jarvis offered to bet | Cratt he had no more — certificates about nim, which challenge led the production o! three; that Oralt was much under the influence of liquor, and alter rema three-quarters of an hour he | (Craft) foil down outside the door. The barkeeper at saat time saw Conklin and others around Craft; | | he senv bis young assistant, Joseph Miller, for a | | policeman, Mttler was the next witness, He de- | tatled the circumstances of the falliag, ana con- tradicted the previous witness by saying he did not see Conkin near Craft when he fell tne | Second time, he having previously falion between the doors as he was going Out. OMcer Hawkey swore that when he was called to take charge of the complamant Conkiin assisted him | part of the way in taking him ¢o the station house; that he did not see him tako any- | thimg (rom Crait; that he bad a gold watch and chain, but when searched at the station house none of tho gold certificates were found. Joseph | Hildebrand, a waiter, who Iited Mr, Craft | up the first time he fell, testified that be did | not see any money or take any from kim. The Court took o recess of half an bour, after which the prosecuting officer rested his case. William Conkitn, Judson Jarvis and Lawrence Curry gave their account of the transaction be- tween Mr. Craft at the Sheriff's Office and after- ward at Deimonico’s, from which it appeared that they did not acoept nis invitation, bat were fol- lowed by the complainaat, who joined them. tain the charge against Conklin, several persona | having abetter opportunity to take the money | | than the accused. District Attorney Rollins made | an effective argument, maintaining that the evi- | dence adduced by the prosecution showed that | Conklin was concorned in the larceny of the gold | | certiticates, | The hour being late, the Recorder postponed the delivery of his charge till Monday merning. The Tompkins Square Hiot—Six of the Alleged Rioters Discharged. Jnst before the Court adjourned Henry Faiter, | Thomas Oates, John Englehard, Justus Schab and | | two others, indicted for participating in the alleged | | riot at Tompkins square, were proughé to the bar. As they were too poor to furnish ball, and as the | evidence against them was slight, District Attor. ney Rollins consented to their discharge ‘The Recorder let them go on their own recogni- zances, Millard Sentenced to the State Prison for Five ro. George A, Millard, who who was tried and con- victed of receiving stolen goods, was sentenced to ; the state Prison for five years. It will be remem- | bered that Millard wag the keeper of the saloon at | the corner of Washington and Canal streets where | the masked burglars were arrested. Mr. Townsend moved for a new trial on the | ground that the verdict was against the weight of | evidence. His Honor overruled the motion. Grand Larceny. Philemon J, Tounay, who was charged with | | Stealing # trunk containing clothing. on the 3iatof | h™ | January, belonging so Zavier F. Savurian, pleaded | guilty, It appeared from the complaint <hat the accused occupied a room with Savurian tn Prince | street, and stole a pocketbook contatning $40 and keys of the trunk, which was at Castle Garden, of | which the prisoner obtained possession. It was, | however, recovered in Morton street. Tounay | A False Pretence Case. Louis Lotz pleaded guiity to obtaining a watch | on false pretences. The defendant went to the store of Herman Marcus, in John street, on the 24th of December, and handed tim an order fora gold watch, signed by Paul Worth, which he pro- | cured from 3 young man on the stairs of that eg- | tablishment. He was gent to the Penitentiary for three years, SECEND DISTRICT COURT. A Portrait That Was Not a Portrait. Before Judge Field. Eugene Bertrand vs, Gustav A, Flach.—This case invoived the question whether or not a portrait of a little caughter of Mr. Davia Levy, of East Sixty- | second street, painted by the defendant, @ por- trait painter, was a good picture, and done ac- | cording to contract. Mrs, Levy, who assigned her | alleged claim to the plaintiff, testified that the de- | fendant agreed to point a first class portrait of her | little daughter to her entire satisfaction for $50; | that she paid him $29 on account thereof, and that the portrait, which was produced in court by the | defendant, was not properiy executed, and that it | did not resemble her daughter, who was produced in Courtand oxhibited with the portralt, appar: | ently to the delight of the numerous spectators. | Another witness testified to the same effect. The | | action was to recoyer the sum paid on account, | as she refused to pay the balance and take the pictuse. The defendant testified that the pic- ture was done according to the directions of Mrs. Levy and her husband; that when it was com- | pleted rit expressed their satisfaction with tt, and at thelr request be made several alterations in the color of the shoes, ribbons, dress and sur- roundings of the picture, involving considerable extra labor, without any additional charge; and | that because he refused to keep on making further extensive alterations from time to time ane be- | came dissatisfied, refused to take the picture and demanded the return of her depostt. ar, Doerge and several other artists testified that the por- tratt was executed in an artistic and workmanlike manner and was a first class picture of the original. The Court evidently took the latter view of the matter, a8 be promptly renderea a judgment for jhe defendant, TOMBS POLICE COURT, A Broadway Burglary. Before Judge Bixby. About nine o'clock on Thursday night the wife of | the janitor at No. 265 Broudway told omcer Gil- | bert, who was on post near Morris street, that Ho gave the alarm and entered, In the oMce occupied by Knoch Wa! jafe was found partly opened, and a num- ber urglars’ tools lying beside it, They con- sisted Of & sectional jiinmy, @ dark lantern, aft bumber of drills and picklocks. The burglars got out at the rear window, but were arrested by Ser- geant Lindon and Roundsman spen in New | street, as they were endeavoring toescape, They ave their names ag Charles Powter and Charles roctor, painters, They were taken before Judge Bixby yester- day and committed without bail. In the building which was entered were a number of business omves, having sales ‘or keeping vaiuabie securities, Till Tapping. John Coleman was arraigned on a charge of Stealing $8875 from Edward Lawton, of No, 337 Washington street, Coleman went into Mr. | Lawton's piace on Thursday last and asked change for a $2 bili, While Mr. Lawton was roourise this itis alleged he was robbed of the above. named sum by Coleman, who was held in $2,000 bail to answer, Young Desperadoes, Two boys, named Matthew Hughes and John Kenney, were brought up for running away with a horse and wagon valued at $500, the property of Augustus Van Raden, of No. 23 Christo pier street, i e og: a. bier — found tn their posses- sion by OMicer Londrigan, of the Fith precine! ‘They were held ta $1,000 bail each, sabes YORKVILLE POLICE COuAT A Charge of Bigamy, Before Justice Wandoil, Martin O'Brien was arraigoed on o charge of bigamy, preferred against him by Ann Lawior, hia firat wile, and Elizabeth O'Brien, bis second wife. On the Ist inat, Mrs. O'brien No. 2 obtained @ war- fant for the defendant's arrost on @ chargo ot assault aad battery, Subsequently ahe made the | Clerk of the Supreme Court, from which it issued, time, This indictment had been found by the Grand Jury, and the District Attorney had no right’ to place in it anything | but what tne Grand Jury had placed or authorized to be placed there. A bil of particulars was a finding of the District Attorney and not of the Grand Jury, Further- | | nothing more nor less than on aggravation of that | they would see that it was drawn in the language | tion before him repeatedly, and he had looked at | under a contract made with the Secretar: | the Dooks where an indictment of conspiracy | those the ones jee are going. intot d otherse | the overt a rivate.tamulien and, gu compare ‘ate families, ° they discovered that the defend- ant does nothing for a living and that had been in the habit get! money trom both since his marriage with them, He was married on tne 25th o1 September, 1878, at Tarrytown, to wife No. 2, and to nis first wife Decem- ber 2, 1872, at St. Michael's church, in this city, The accused was committed for trisi, and the complainunts were sent to the House of Detention. Till Tapping. Kate Locke, wife of a baker at No. 343 East Thirty- fourth street, charged a young man named William Cr nan with till fepping. He was committea tor trial in default of bail, Professional Th: Be Counsel moved for the discharge of Thomas Mur- phy, James Hoyt, Thomas Moray and Joseph Dock, the alleged projessional thieves. There being no evidence to substantiate the charge against Moray ana Dock they were discharged. The other two the Court decided to hold till to-day when, it is asserted, Sergeant Armstrong of the Ninteenth sub-precinct, will show that they were ip the pursuit of their calling as alleged car thieves when Court what purported to be a writ of certiorari, to show cause o! detention. The writ was, however, worthless, because it had not been signed by the acquaintance of wife No. 1. domestics in ing notes, and before snot-er can be obtained the prisoners aie pare been either discharged or sent to the and. BROOKLYN COURTS. UHITED STATES CIRCUIT COURT—CHAMBERS. The Alicged Conspiracy Case—The Prose- ¢cution of Sanborn, Hawley and Van- derwerken=The Defendants Demand- ing to Kuow the Specifie Charges Against Themseives—Mysterious Insin- uations Against the Treasury Depart- ment=—The District Attorney Fails to Secure the Kecords in the Case—In- teresting Proceedings Yestorday. Before Judge Benedict. Jadge Benedict sat in Chambers yesterday morn- ing to hear the arguments on the motion of the counsel for the defence in the case of Sanborn, Haw- ley and Vanderwerken for a bill of particulars of the indictment. Mr. B. F, Tracy made the motion, and District Attorney Tenney opposed. Messrs, La- rocque and Buchanan also appeared as counsel for Sanborn and Hawley. Mr. Tracy submitted the aMdavit of Vander- werken, claiming that a bill of particulars was necessary in order to enable him to know the spe- cific charges against him and to prepare the de- fence. Mr. Tracy said he would not make aay ar- gument. Mr. Tenney said that he was ready to go into an argument. The aMidavit presented here was en- tirely general in its nature. It asked for nothing tnat he was able to discover but matters of evi- deuce, which, of course, was not proper. In the first place he made objection to the af- fidavit, that, if they desired to submit the case upon the pleadings, upon the indictment, they should have made their aMdavit | more specific and not so general. It demanded nothing but simply transactions, overt &cts and the means of proof—that is, the papers which are in this case, Mr, Tenney took the position that under the common law the defendants, in 9 mat- ter of conspiracy, are not entitled to a bill of par- tculars, As he had previously stated, @ bill of par- ticulars was no surprise atall to him. He knew that in England they had been granted for a long move, a dill of particulars limited the prosecution, | You couid not go outside of a bili Of particulars, Now, then, in this case, these deiendants were charged with @ conspilacy todefraud the govern- ment, Tue offence was a conspiracy, and the | prosecution had @ right to go tuto all the overt acts | that were committed under that conspiracy, and | the prosecttion had no right, neither could they be compelled, to furnish a bill of particulars of these overt aot the particular transactions carried on and the papers under which they were carried on. Mr. Tennoy sald he found but two cases where, in a conspiracy, bills of rticulars were granted. The first case was found geventh Carrigaton and ike otmer in cignth Cox's Crimt ases. In each of these cases, if his memory served him aright, the several de- fendants were accused of being de(rauders. The indictment, however, failed to specity the indi- viduals that had been defrauded, but it set forth that they were certain subjects of tho King. In this indictment against Sanvorn and others the prosecution alleged that the goverment had been deirauded; that the defendants entered into a conspiracy to detiaud the guvernment, ana the means by which that conspiracy had been carried out was a matter of proof ior the trialon which these defendants were to be arraigned. The con- Spiracy was the offence; the overt acts were offence. Again, a conspiracy was nothing more nor less than a misdemeanor, and it was perfectly well established that an indictment drawn for misde- meanor when it was laid in the words of the statute was sufficient, and if the defendants or their coun- sel Would examine every count of this indictment of the statute. Judge Benedict said that a bill of particulars was allowed when the indictment did not give informa- tion as to trausactions. He had heard the ques- English cases, and he Could see no earthly reason why, when an indictment did not give information as to transactions inquired about, @ bill ot par- ticulars should not be given, He had not read this indictment; he supposed it was the general todictment foliowing the words of the statue and not giving intormation of the transactions into which the prosecution were goipg to inquire. fdr, Tenney said that this indictment alleged that these parties entered into a conspiracy to de- | fraud the government out of large amounts of money, and that they entered into this a oe e Treasury, It wentinto particulars, stating pre- cisely how the thing was done. It alleged overt acts, going step A step, and he challenged tne at- torneys of the defendants to produce a case in wass8o definite and so specific as the one in this case. It set out, which the prosecation were | not Obliged to set out, the means employed—that the conspiracy was carried out by means of writ- ings, drafts, certificates and the like. These were the ‘specific means, and that was a question of | proof, Ali this was under the first count for con- spiracy. Now, then, the defence asked for the specific transactions in this case. He said here he was willing t ad these specific transactions. Mr. Tracy—Thav’s all we ask, Mr. Tenney—It is due to me. and my Office to say that in our indictment we have been as specific as we possibly coula be. We have alleged in the in- dictment every single overt act we Could Biidge,: when we have not been obliged to allege one single overt act, it is perfectly well held that the means by which a cect ah 1g carried out have no place ina bil of particulars and no place in the indict. | ment, fudge Benedict—Is your indictment for coil- spiracy to defraud or commit an offence, or both? Mr. Tenney—Tv defraud the government and commit an offence. The fraud itself t The indictment is drawn under th section—under the ac! 20, 1868, The defence particular transactions, We have set forth tnree particular transactions, and those are overt acts, Mr. Tracy—If those are all pi ray upon, then, that is all that 1s necessary to aid. The coun- sel has got three counts in whic! aoes set out particular transactions, As to those we do not ‘want any information—we know what they aro, sud, enedict (ro the District Attorney)—Are Mr. Tenney—Those and all Mr. Tracy—We want to know pon what par. ticular transaction he relies in the first count. The second and fourth counts are specific enough on the question of the transactions. Taney allege » the presentation of certain fraudu- lent papers, On those counts we shall ask him (the District Attorney) what papere he is going to alloge were false and frauduleat, so that we shall be prepared to show that they were not, The first | count is entirely indefinite and uncertain, Mr. Tenncy—What do you say about the afth ount? Mr. Tracy—I don’t consider it worth answering, Judge Benedict (to the District Attorney)—You intend, on the trial, to hold the defendants under the first count a8 well asunder the second, third and iourth—you have a general count, and have made your transactions in the second, third and fourth specific? Mr. Tenney—Yes, sir. We rely upon every count in this indictment. We propuse to avail ourselves of every particie of law there is in the case, and every particle O1 transaction, Judge Benedict (checking him)—One moment. You have not answered the question. I asked you if you intended to prove under the first count any transaction which Was not set out, mentioned ia the second, third and fourth? Mr. Tenney—Most assuredly I do, Judge Benedict—Then, why don’t you give them notice of what that transaction is? Mr, Tenney—Because it is nov necessary and tho law doos not require it. Judge Benedic!—Your way is to give them a bill of particulars of that Qrst count, and you maj give it as fully or meagrely a8 you please. That is ho way in the Southern District, and the object of it is that, while they know what transacuon you are going at, you are not bound to give them evi- dence or the specific facts, If you give them a biil of particulars, which shows thom what transac- tion you intend to prove under tho frst count, then that ia all I shall order, Mr, Tenney—The books have latd tk down thay | rested, Counsel served upon the | ¢; this question of a bili of particulars rests With tne discretion of the Court. wa Benedict said he did not ask him to say , ke, Mr. ney said they wanted him to set out the estates upon which ta: red @nd the estaten defrauded. 5 “ore Tecovere Mr. Tracy—Yea, o! at's the point. Mr. Tenney—We hay yn gro) in tho dark for some months. : Spuhtbioe Mr. Tracy (inter: —I take it, sir, you have Bot been indicting bt without proof. Mr. Tenney—I went to Washington for— Jus Benediot—I don’t care what you went there for. You draw such a bill of particulars as you think thy onght to give. I don’t say what it should be. If it is not specific, then let them object to it. Af you say you can’t—if you say you do not know bony the ‘first count reiers to—that is the end Mr. Tenney—We don’t say so. We have had enough evidence to satisfy twenty-three men. The District Attorney then essayed again to speak of his Washington mips but Jndge Benedict declined to hear him on that point, saying that he aid not care what Mr. Tenuey did at the capital, Ho reiterated what he had said about the bill of particulars, Mr, Tenney then insisted that the first count was nota general count, It sets out conspiracy and jhe modus operandi of the conspiracy. Judge Benedict Seomans he had better serve & bill under the first coun! Mur. Tenney intimated that tho Court made this order without feeding the papers in the case. Judge Benedict replied that he did so on the Dis- trict Attorney’s statement of the first count. Mr. Tenney (who was, perhaps, a little piqued) — Task that a formal order be entered and that a copy be served upon me. adge Benedict—Well, { will make the order now, It 13 ordered that the District Attorney, within five days from this date, furnish tne de- fence witn a bill of particulars showing the trans- actions set forth in the first count of this indict- ment. Mr, Tracy asked that the District Attorney should say what tho papers were—the papers men- tioned in the indictment—so that the defence coy go to the Treasury Department and find ha Mr. Tenney—If you can get the in do bet- ter than I have, kg sacaabe Mr. Tracy said that this was no question for a stump ech or for casting innuendoes against anybody. He held that before such charges could be put in the indictment there must be some proof of what the representations, or appliances, or writings were. ie prosecution might not be apie to set out a literal co; of them, but they were | bound before the Grand Jury to prove the existence of certain papers, &c., and they were bound to state whether they were verbal or written. The delence could not say but that they were to be confronted by proof of verbal representations, and verbal representations could not, of course, be false paper within the meaning of the s:atute. The prosecution set up that the defendants com- mitted this fraud by means of presenting false and fraudulent papers, which of itself was a crime, Mr. Tracy did not know whether the defendants were to be confronted with certain vouchers or what the character of the paper was—whether it was @ letter written to the Secretary of the Treasury; whether these representations were contained in that letter, by which the Secretary of the Treasury was induced to do certain things, or whether it was @ bank check, or draft, or certificate of deposit, or bill of credit. {t might have been that witnesses were produced before the Grand Jury. At any rato, the defendants wanted to know what it was, and they would be content to be very general on the subject; but they wanted something which would enable them to prepare their defence and know what they had got to meet, so that they | would not be surprised on the trial. Mr. Tracy | continned his remarks ina similar strain for some time, and at the conclusion Judge Benedict said that he must look at the other counts of the indictments, and concluded to reserve his decision, The order previously made was not formally set aside, but {t was understood that it was to be con- Sidored as inoperative. Counsel agreed to wait upon Judge Woodruff to-day to ascertain whether he could try the case, Judge Benedict said he would be occupied with business in the District Court and could not try the case this month. CITY COURT—TRIAL TERM. A Nurse’s Compensation. Before Judge McCue, The jury in the sult brought by Mary White against William Albert and Cnaries Hickman, executors of the estate of Captain Richard Adams, for services rendered the wife of deceased as nurse from 1867 to 1872, rendered a verdict for $6,£00 for platowim. This is the third time this suit has been | tried. The defence in cach case has been that Mary White had been paid in full for the services | rendered. The plaintiff claimed $7,125, On the first trial the jury failed to agree. In April last, when it was tried ee @ verdict for $5,700 was rendered, A new tri wi granted, as above stated, with pecuniary advantage to the plaintif. COURT OF APPEALS CALENDAR. ALBANY, Feb. 13, 1874. The following is the Court of Appeals day calen- dar for February 16, 1874:—Nog, 11034, 112, 113, 63, 115, 119, 12054, 107. ALLEGED NATURALIZATION FRAUD. pe a ee A Saperior Court Clerk Indicted. Some time ago Edward Brocks, of the Fifteenth Assembly district, was arrested and required to give bail before a United States Commissioner on @ charge of having, by fraud, procured a certifi- cate of naturalization for one George Haerle. It seems that Haerle attempted to register as a voter on @ naturalization paper purporting to have been issaed In 1868 by the Supreme Court of this State, and that the persons before whom he made the attempt to rogister deciared the certificate to be | fraudulent, Haerle, however, expressed the belief | that the certificate was genuine, and then appied to Brucks to see to the matter and procure for him @ certificate, with respect to the authenticity of which there could be no doubt, Brucks states that he examined the files ot the Supreme and Superior | Courts for the purpose of flading the name of Haerle as a naturalized citizen, but the search, a8 he says, proved to be en- | tirely fruitless. Haerle subsequently _pre- sented a naturalization paper purporting to have been issued by the Superior Court, and Brucks was arrested on a charge of having procured this latter paper by fraud. On this charge he was held by the United States Commis- sioner; but he most indignantly dented that he was guilty of any such offence, Recently Mr, Brucks made a statement to the United States Assistant District Attorney, which showed that he | (Brucks) had nothing to do with the paper in ques- tion, This statement led the government counsel to believe that the offence of Issuing the fraudu- lent document was committed by one James Mas- terson, acierkin the Superior Court, who, it is charged, obtained the certificate for Haerle when the latter was not present in Court at the time it was issued, as he should have been, with wit- nesses, to prove his residence and identity. Yes- terday Masterson was indicted on the above charge by the Grand Jury of the United States Cir- cuit Court. He was arrested on @ bench warrant, and willbe taken before Commissioner John A, Shields for the purpose of giving ball. LIGHTING THE STREETS, Contracts Awarded te the Harlem and Mutaal Companies. The Gas Commission met yesterday afternoon, in the Mayor's Office. All the members were pres- ent—Mayor Havemeyer, Comptroller Green and Commissioner Van Nort. The ComPrRoLLeR moved that the contract for supplying gas to the city lamps and repairing them in the Harlem Gaslight Company’s district be warded to that company, and that the contract ; for supplying gas to public lamps in that part of the Metropolitan Company's district which has not been awarded to the Mutual Company be awarded | to the Metropolitan, which was adopted. Commissioner VAN Nort moved to reconsider the action of the Commission in awarding the contract to the Mutual Gaslight Company, at $35 per lamp, 3 award the contract to the Metropolitan, a! Mayor HAVEMEYER Said that {t would beacting in | bad faith to do so, The Commission had contracted with tho Mutual Company to furnish gas at a cost | of $35 rs lamp in that part of the jetropolitan: district where their pipes are iaid. The Metro. | politan proposed to furnish gas thronghout their whole district at $87 per lamp, but if ny part of the disteiot, was srrarded to any other company ey Wl arge $39 per lamp for light! Fest of tho district. © videncune The COMPTROLLER remarked that it would be un- just tothe Mutual Company to rescind the contract awarded thom; that it was unfair jor the Metro litan Company to step in and underbid the M vos aiter having knowledge of their propo- After some further discussion the resolution to rescind was lost, Mayor Havemeyer and Comp- troller Green voting in the negative, OITY AND OOUNTY TREASURY. Comptroller Green reports the following disburse- menta and receipts of tne treasury yesterday :— DISRURSUMENTS. Onis paid (aumber of warrants 190), amount- 9167.78 ays iain’ Jf waeaiis 8, aiiiog to BE $171,089 195 bert 1 rom water rents... From licenses, Mayor's Ot From foes and flags, district courts. Tho Comptrolicr on Wednesday patd the “small A Dinos’ men to Lat inst, SRBOTE THE SIMMONS-DURYEA TRAGEDY, Opening of the Case for the Prosecution. All the Testimony for tho People Submitted. Details of the Tragedy as Recited by Eyewitnesses. The fourth day ahd really the commencement of the ¢rial of Jonn E. Simmons, the alleged murderer of Nicholas W. Duryea, was entered upon yester. day before Judge Brady in the Court of Oyer an@ Terminer. As on the previous days, the court room was crowded to ita utmost capacity, Tne prisoner was still accompanied in Court by hig wife and child, and betrayed no more anxiety than at any time since the commencement of the trial, All the counsel were prompt in attendance, as usual, OPENING THR OASB POR THE PROSECUTION. Directly on thé opening of the Court District Ate torney Phelps began his opening for the prosecution, He commenced by alluding to the importance of the case, involving the life and liberty of the prisoner, and the Sinaitic law against murder, and the gravity of the duty of the jury, and then briefy stated the facts as understood by the prosecation, Duryea, he said, & man under forty years of age, had been assoctated tn business with the prisoner, his senior in the lottery business, owning a Ken- tucky lottery. Out of that business no considera- tion should arise in tuia case agaist either, Some time prior, to this occurrence their partnership had terminated, Duryea selling out bis share. But hard feelings arose, Simmons thinking that, note withstanding the sale to him, Duryea was trying to gain a share or undermine him in the business, and these thoughts culminating tn expressions by the prisoner of strong threats against Duryea that he should not live to enjoy the pro- ceeds of any such bad faith. These threats were, some of them, told to Duryea, who, however, declined to take any precautions. Duryea being accidentally in the city, and having @n appointment with a friend namcd Allen, who had an office under the office occupied by the prisoner, at No. 67 Liberty street, was brought inte his immediate neignborhood. Mr. Allen did nog keep that appointment, but left his place before Duryea came there. Ouryea and the prisoner were immediately after seen on the sidewalk inan angry altercation, ending in the lie and a blow by Duryea. They grappled and fell. Duryea was the lighter. The prisoner at first was beneath, but in the straggle came uppermost, drew a knife and re- peatedly stabbed Duryea. The latter cried out to be let up, scarcely able to raise his head, but the msoner struck again, and with a shudder uryea fellback dead. As the prisoner rose he said, “Now, I’ve got the best of Both had bad their ankles broken, The prisoner called om acterk, who had been standing by, to aid him, He told the police oMcer who accompanied him to the police station that two men had tried to rob him. He told the surgeon his ankle was broken by a club, but was silent when the surgeon inted out that there was no external mark, ‘hey probably (keh anticipated what the defence would be. He did not propose to deny the law of seli-defence, It was founded deeper than the statute law—in the laws of human nature. But that law did not justify the seeking of an affray and the murder of an enemy under cover of a nelisongys quarrel, It did not justify a man, after he had overcome his enemy and the latter was yielding and begging ta submission, in resorting toa deadly weapon to take lie. Tne prisoner stood here with every atd that wealth and learning and industry could sup- | ply, and that greater aid of the human SyeDeear which clustered round the man tn of the dead and the sufferings of those who had lost him. He appealed in conclusion to the jary for the faithful, earnest, impartial discharge ot their duty iu this case, as representatives of the community and as before that dread bar to which all must give account. EVIDENCE FOR THR PROSECUTION—TESTIMONY OF GEORGE D. ALLEN. The first witness called for the prosecution was George D. Allen, who testified as follows :—I live in Brooklyn and have a place of business at No. 1 Pine street; in December, 1872, my place of busi- ness was No. 67 Liberty street, near Broadway; the store and two cellars; the firm was Macy & Jen- ‘ . 8. Where did you last see Duryea? r, Graham objected to this a3 an effort to intro. duce manufactured evidence, but was overruled. A. On the morning of his death, about half-past eleven o'clock, in Wall street, opposite New, Q. Did you make an appointment with him for a subsequent meeting? Objected to and ruled out. Examination resumed—lI left my oMice about ten minutes to six O'clock; 1 did not again see Duryea. living; saw him dead; Simmons had a@ place of business over our store. To Mr. Feliows—! am very confident as to the time I met Duryea; { had known Duryea sixteen or eighteen years; he knew my habits; he knew [ left the store at from haif-past live to six o'clock. TESTIMONY OF EUGENE SURRMAN, Engene Sherman testified a3 follows:—Am sov- enteen years old, and a butcher, in the employ of John Eisey & Co.; in December, ibe was in the employ of Hull Co., in the Swamp; I member the 16th of December; I leit Hull & Co. about ten minutes to seven; | was sent to the Post Office with letters, and dropped my letters and went down Liberty street to go home; when I got ;a couple of doors above Sutherland's I saw about five men standing looking at two men on the north side talking pretty loud; one was @ stout, well built man, the other 4 man not quite 60 well built; he was more siender and a little taller; the prisoner was the stouter looking man; L stopped and heard the stouter man say, “i will swear against you;’’ the younger man said, “Don't yon pull anything on me; then the younger man Strack, and they both foll together; at tirst the elder man was underneath, but alter @ second or two be came uppermost and seemed to be maxing @ motion as if poking him in the body; I ran to the corner to get an officer; 1 turned back and saw the elder man get up an a> ger, and somebody ran out of the restaurant and helped him over; lran back and climbed up on the railing outside of the restaurant and saw the elder man sittipgon aetool with his head down as if panting; 1 went over where the was and saw @ mau pick up something red like morocco Case irom the blood; a police officer snatched it out of his hand and said, “Give ma that;” a fruit cart had come up and they put the elder man in it, and were going to put the dead MERI, Wace we Cicer stopped kim, and the ody was carried away on a stretoher; it waa the peaidar man [ saw strike at tne head of the other; 8 eri, forge’ in’t Knock him down; I don’t know how they ell; when the elder man was poking the other ne was a little raised up—I can’t exactly describe 1, The witness here went on his knee: Cem ck! and illustrated the motion. Acco: to him ti Motion was “underhand”’ and not vverhand of directly downward, » Graisim—I was examined before the Coroner’s jury; 1 sQppose what 1 said to-day was in nearly the samo words as I said then; 1 don’t think I said Cpt | at the Coroner's jury about the morocco sheath or about rise to put the body in the cart; the evening was wet and misty; | I can’t tell whether there was snow or ice on tl sidewalk ; there were lights in the insurance com- pany’s and in the restaurant; it was dark; 1 did ee hear any one say, ‘I lent you $3,000;" I dida’s ear the short man’ say, “Yes, and 1 pald you back; 1 didn't hear the tal man say, withan oath, “You are a har,” or see him catch the short man by the throat; I do not know any person in- terested in Duryea; [ have toid all I heara: there | wasa@ cry of murder, but I don’t know who gave it; It was not the parties fighting, but was alter the person roge trom the body. TESTIMONY OF RICHARD J. HOGAN. Richard J. Hogan testified as follows:—In De. cember, 1872, I lived at No. 166 Broadway; on the evening of December 16, 1872, | was iu No. 69 Lib- erty street, on the second floor; 1 heard a area the street ag of people in angry conversation, a ran down stairs, when I saw two men on the side. walk; Lrecognized the prisoner, who was on top, with Duryea uuderneath; their leads wore toward the building; I saw the prisoner raise himself and strike Doryea with something that glitwored im the light; he said as he got up, “Now I’ve got the best of you;’’ as he rose be got entangied with Duryea and fell down in the gutter, and sald, “I'v broken ankle; I went to Broadway and got Officer Weber; 1 suppose the scufie lasted alter I was there three tu Ave mina the prisoner ateaok witn his right hand; it was pretty dark, but Toould see his head; he struck toward Daryea'g Mr. Fellows—I think Isawthe prisoner as: sisted to Sui ‘land's, but am not positive; there ‘was considerabie excitement; I didn’t hear Duryea gay & word, and saw no motion on his Pace there party of men on the other side of the street, Sutherland's; tho prisoner struck five or six Loouldn’t say whether Duryea’s legs were over the prisoncr’s; it looked ag if they were locked; their feet were over the gutter; all the blows {saw struck were about tho head aid Neck; from the time | heard the notse to the end of the struggle four or five minutes elapsed. The Court here took a recess, TRETIMONY OF CHARLES ANDERSON. Charles Anderson, @ Post OMco clerk, was the next witness, He testided tuat he saw the soume between the prisoner and Duryea, which he de- OONTINOED ON NINTH PAGE a blo’