Smith agt. Wells. articles of association, and for a fair and just consideration; and the same has been realized by and divided amongst all the stockholders and associates, the plaintiff receiving his pro rata share, dividend, or proportion thereof; and the defendants aver that they have always, in the exercise of their office as such trustees, endeavored to discharge the duties of their office faithfully, and so as to advance the best interests of the said company and their associates." And as another defence, it was stated that before the dissolution of the said American Express Company, in the complaint mentioned, the said association, for a valuable consideration, duly sold and transferred to an association. called the American Express Company," organized on the day of the termination of the first mentioned association, all the property, assets, claims and demands, rights of action and interests of every name or nature, wheresoever the same might exist, and that by virtue thereof, the said association so last organized succeeded to all the rights, claims, actions and causes of action, property assets and effects of every name and nature belonging to or in which the association first mentioned were interested; that said sale was made in the presence of and without objection on the part of the plaintiff, wherefore the defendants object that the said last named association is a necessary party to this action, and that this action cannot be maintained by this plaintiff. Also, that on the 29th of December, 1859, and before the dissolution of the association, the plaintiff sold out all his interest in said association, and his right and interest in its property and effects to one D. P. Smith, whereby the plaintiff had no interest of any kind or nature in and to any relief claim or demand in the complaint set forth, at the time of the commencement of this action. JOHN H. TRAPP, attorney, and JOHN GRAHAM, counsel VAN VORST & BEARDSLEE, attorneys, and H. C. VAN Smith agt. Wells. LEONARD, J. The complaint relates to an alleged fraud committed by the defendants as trustees of property in which the plaintiff had an interest several years ago, whereby the defendants have caused an injury to the plaintiff. The act complained of might have justified the court in appointing a receiver, or removing the defendants from their trust when the offence was committed, and when the plaintiff had an interest in the property. It appears now, from the answer, that the plaintiff has sold and transferred all his interest in the property which the defendants held as trustees, and which they probably still hold. His right of action for the injury done to his property, in its value, by the alleged fraud of the defendants, remains however. The plaintiff cannot demand the appointment of a receiver of property in which he has no interest. The allegation of the answer is distinct that the plaintiff sold all his shares or interest in the association of which the parties to this action were members in December last. That allegation is not referred to in the affidavit on which the plaintiff's motion for a receiver is founded. For the purpose of this motion this allegation of the answer must be taken to be true. On reference to the complaint, folio 25, the fact that the plaintiff's interest in the property of the association terminated last December, is, impliedly, there stated. The motion for a receiver is therefore denied. The motion to make the denial contained in the answer, at folio 15, more definite and certain, is granted. The allegation of the complaint is that the defendants sold the goodwill, as well as the property, at the various stations, &c., of the Erie railroad division. The hypothetical admission of a sale, at folio 21, of the answer, refers, I think, to the property of this express route belonging to the association, as distinguished from the Devlin agt. Platt. "goodwill." The allegation is distinct that the railroad refused to run the express or conduct their business. This proceeding of the railroad destroyed the value of the "goodwill." Assuming that the defendants have denied that they procured the railroad to make this refusal, it may be that they might then allege that it was for the interest of the American Express Company to sell the stations and the property of the company along the route, which they could no longer use, and that the sale was made in the exercise of sound judgment and discretion. For this reason I arrive at the conclusion that the answer does not afford sufficient internal evidence of the falsity of the denial at folio 15, to warrant an order expunging it on that ground. There is no provision of the Code that allows an answer, or a part thereof, to be stricken out on the ground of inconsistency only. (Ostrom agt. Bixby, 9 How. Pr. R. 59; Hollenbeck agt. Clow, 9 How. Pr. R. 290.) NEW YORK COMMON PLEAS. In the matter of the application of DANIEL DEVLIN agt. NATHAN C. PLATT. The supreme court, or any justice thereof, have no power or authority to issue a common law writ of certiorari to remove into that court a summary statutory proceeding pending and undetermined before a county judge, or any judge of the court of common pleas of the city and county of New York. It is only the final adjudications and determinations of such special officers and tribunals which can thus be removed. Any judge of the court of common pleas of the city and county of New York, has jurisdiction and anthority to entertain and determine an application under the statute, (1 R. S., 124, § § 50, &c.,) of a public officer for the delivery over to him of the books and papers of his office. In the absence of the mayor of the city of New York, the president of the board of aldermen of the city becomes the acting mayor, and mayor in fact for every purpose, and can exercise all his powers (Laws 1857, p. 874.) He can, therefore, with the consent of the board of aldermen, legally remove for cause, the chamberlain of the city from his office, and appoint another in his place. Devlin agt. Platt. The chamberlain of the city of New York being only chief of a bureau in a department of which the comptroller is head, the mayor of the city has no power of suspension of that officer-that power is confined to the head of the department. New York Special Term, January 7, 1861. APPLICATION of Daniel Devlin to procure the delivery to him of the books and papers appertaining to the office of chamberlain of the city of New York, claiming to have been duly appointed such chamberlin. JOHN E. DEVELIN, for applicant. HILTON, Judge. This proceeding has been instituted before me under 1 R. S., 124, sections 50, 51, 52, 53, on behalf of Daniel Devlin, claiming to have been duly appointed successor of Nathan C. Platt, as chamberlain of the city of New York, to procure the delivery of the books and papers appertaining to the office, and which are in his custody. The sections of the statute referred to provide: That whenever a person shall be removed from public office, or his term shall expire, he shall, on demand, deliver over to his successor all the books and papers in his custody in any way appertaining to the office; and in case of neglect or refusal so to do, such successor may make application to any justice of the supreme court, or first judge of the county where the person so refusing shall reside, who, upon being satisfied by proper proofs that any such books or papers are withheld, shall grant an order directing such person to show cause, within a short and reasonable time, why he should not be compelled to deliver the same. At the time appointed the officer must proceed to inquire into the circumstances, when, if the person charged shall make oath that he has truly delivered over to his successor all such books and papers, further proceedings shall thereupon cease. But, if such oath is not made, and it appears that the books and papers are withheld, the judge before whom Devlin agt. Platt. the proceedings are had shall, by warrant, commit the per son so withholding to the jail of the county, there to remain until he delivers over such books and papers, or is otherwise discharged according to law. Having, upon sufficient proof, granted the order to show cause, at the time appointed the parties appeared, and the counsel for Mr. Platt, produced a writ of certiorari, issued by the supreme court in this district, granted at a special term thereof, held by Mr. Justice BARNARD, and claimed that by virtue of the writ all my powers were suspended and stayed, and this proceeding was removed into the supreme court. My answer to this was, that although entertaining great respect for the tribunal from which the writ emanated, yet I did not consider it as possessing the power to arrest a proceeding thus instituted before me as a judge of the court of common please, prior to any final determination being made of the matters involved. That if the writ had the effect claimed, its operation would be to remove a statutory proceeding, intended to be summary before a judge sitting at chambers, into the supreme court at a general term—a tribunal possessing no power whatever to continue or complete it, or to give any relief to an application thus removed in its incipient state. On reflection, I see no reason to change the views thus expressed. There cannot of course be a doubt as to the power of the supreme court to review, by the common law writ of certiorari, the final adjudications and determinations of all officers vested by the legislature with power to decide. upon the property or rights of any citizen, who act in a summary manner, or in a new course different from that at common law. But, as its legitimate office is to review and correct the decisions and final determinations of inferior officers and tribunals, and not to invest the court with the right to exercise the powers thus conferred by statute on special officers and tribunals, it necessarily follows, that it |