USA > New York > New York City > History of the Court of common pleas of the city and county of New York : with full reports of all important proceedings > Part 2
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LATER HISTORY OF THE COURT.
The Mayor's Court was continued through the Colo- nial Period. The City records leave it in doubt as to whether the Court was or was not held during the War of the Revolution.
In the beginning of 1784 James Duane was appointed Mayor, and from that time on, there is no break in the sittings of this Court. Mr. Duane, a lawyer by profes- sion, who as we have seen defended Cadwallader Col- den in the attack made upon him by Lord Dunmore, had acqured a large practice before the Revolution, and during that period had served as a member of the Pro- vincial Congress and as a delegate to the Continental Congress. His high character drew into his Court every lawyer of ability. The leading practitioners were, for instance, Alexander Hamilton, Aaron Burr, Col. Troup, Edward Livingston, Brockholst Livingston (the latter afterwards Judge of the Supreme Court of New York, and from 1806 until 1823 one of the Judiciary of the Uni- ted States Supreme Court), Egbert Benson, Morgan Lewis and Josiah Ogden Hoffman, the father of Ogden Hoffman, who was Attorney General from 1795 to 1802, and Associate Justice of the New York Supreme Court from its creation until hisdeath, men whose first forensic effort was made in the Mayor's Court.
Judge Duane presided till the close of 1789 when he was appointed by Washington United States District Court Judge.
22
Morganjeurs.
Denite Clint
Edizioneston
By the Dongan Charter it was provided, among other matters, that the Mayor, the Recorder and Aldermen, or any three of them, of whom either the Mayor or Recorder were required to be one, were authorized to hold the Mayor's Court, or the Court of Common Pleas. It was presided over by the Mayor and Recorder alternately.
During the following thirty years and more, 1789 to to 1821, the list of Mayors and Recorders who sat in this Court included many of the most distinguished lawyers of the State. The Mayors were: Richard Varick, Edward Livingston, De Witt Clinton, Marinus Willet, Jacob Radcliffe and Cadwallader D. Colden ; and the Recorders were : Samuel Jones (father of the late Chief Justice), James Kent, Richard Harrison, John B. Provoost, Maturin Livingston, Pierre C. Van Wyck, Josiah Ogden Hoffman, Peter A. Jay and Richard Riker.
While Maturin Livingston was Recorder, Mayor Clinton ceased, perhaps from choice, perhaps from lack of time, to preside in the Mayor's Court, and from that time on the Recorder sat as presiding judge until 1821, when from the fact that its business had greatly increased, and that the Mayor had ceased to preside in it, it was con- cluded that the name Mayor's Court, no longer in any sense appropriate, should be abandoned. An act was prepared by John Anthon, then the most prominent practitioner at the bar, and was passed by the Legisla- ture, changing the name to the " Court of Common Pleas of the City of New York," and the office of "First Judge" was created. The Governor appointed John T. Irving as First Judge. The Mayor, Recorder and Aldermen were
23
still authorized to sit in Court as formerly, but the First Judge was empowered to hold it without them, and it was his special duty to hold it. The leading practition- ers before him were : John Anthon, Martin S. Wilkins, Elisha W. King, John T. Mulligan, Robert Bogardus, Pierre C. Van Wyck, Thomas Phoenix, Joseph D. Fay, David Graham, Sr., Hugh Maxwell, John Leveridge and Wm. M. Price, though the members of what was then known as the senior bar. Thos. Addis Emmett, Peter A. Jay, Peter W. Radcliffe, Sam M. Hopkins, David B. Ogden, Wm. Slosson, Wm. Sampson and others appeared frequently in the Court as associate counsel in important cases.
In 1834 an Associate Judge was provided. He was vested with all the powers of the First Judge. The Gov- ernor appointed Michael Ulshoeffer. His standing both at the bar and in the community is best shown by the fact that he had already served the people as City At- torrey, Corporation Counsel, and as member of Assem- bly, and that he had been in turn a vestryman of St. Mark's and of Grace churches, two of the most influential congregations in the City of New York. On the death of Judge Irving, in 1838, Judge Ulshoeffer was appointed First Judge, which office he held till his retirement in 1848, and Daniel P. Ingraham (the father of Judge George L. Ingraham, now a Justice of our Supreme Court), was appointed Associate Judge.
Meanwhile (1839) the business of the Court increased so rapidly that an additional judge, vested with all the powers of the other judges, was created, and William Inglis was appointed as an Associate Judge- thus making the full bench of The Common Pleas
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consist of three judges. The number was increased to six in 1870.
In 1844 Chas. P. Daly, then only 27 years of age, was appointed in the place of Judge Inglis.
The Constitution of 1846 especially excepted from the general Judicial reorganization of the State, the Court of Common Pleas and the Superior Court of the City of New York.
A law enacted in 1847 provided, however, that the judges of both Courts should be elected by the people.
All the existing judges (Ulshoeffer, Daly and Ingra- ham) of the Common Pleas were elected in June, 1847. The allotment of their judicial terms, for, in accordance with the provisions of the law, each took his chances in drawing by lot, resulted in Judge Ulshoeffer's securing the two-year. Judge Ingraham the four-year and Judge Daly the six-year term.
In 1849 Lewis B. Woodruff was elected in place of Judge Ulshoeffer; and in 1850 Judge Ingraham was chosen First Judge. Judge Ingraham was re-elected in 1851, as was also, in 1853, Judge Daly.
Their successors were: John R. Brady (1856-1869), Henry Hilton (1858-1863), Albert Cardozo (1863- 1868); Hooper C. Van Vorst (1867-68); Geo. C. Bar- rett (1868-69); Frederick W. Loew (1869-75); Charles H. Van Brunt (1870-84); Hamilton W. Robinson (1870- 79); Richard L. Larremore (1870-90); George M. Van Hoesen (1876-90); Henry Wilder Allen (1884-91), and Joseph F. Daly (1870-96); Miles Beach (1879-96); Henry W. Bookstaver (1885-96); Henry Bischoff (1890-96); Roger A. Pryor (1890-96); Leonard A.
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Giegerich (1891-96), who constituted the last Bench of the Court of Common Pleas.
There have been since 1821 but twenty-three judges, four of whom served as "First Judges," and three, Judge Chas. P. Daly, Judge Larremore and Judge Joseph F. Daly, as " Chief Justices."
Two have died before the expiration of their term. Judge Robinson in 1879 and Judge Allen in 1891. Judge Allen was stricken in the Court House as he was leaving his Court, and died a few days afterwards in the hospital.
The following table will show the succession of Judges together with the dates of their elevation to the Bench :
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COURT OF COMMON PLEAS, NEW YORK. SUCCESSION OF JUDGES.
Irving.
First Judge under the Act of 1821, when the Court was changed from the Mayor's Court to the Court of Common Pleas.
Ulshoeffer Associate Judge, created by Act of 1834.
Ingraham.
Inglis. Additional Associate ; Act of 1839.
C P. Daly.
Woodruff.
Brady.
Hilton.
Cardozo.
Van Vorst. Barrett.
Loew.
Van Brunt.
Robinson
J. F. Daly
Larremore
Van Hoesen
Beach.
Allen.
Bookstaver
Giegerich.
Bischoff.
Pryor.
I821 1822 I823 1824 1825 1826 1827 1828 1829 1830 1831 1832 1833 1834 1835 1836 1837 1838 1839 1840 I841 1842 1843 1844 I845 I846 1847 1848 1849 1850 1851 1852 1853 1854 1855 1856 1857 1858 1859 I860 1861 I862 1863 1864 I865 I866 I867 I868 I869 1870 1871 1872 1873 1874 1875 1876 1877 1878 1879 I880 1881 I882 1883 1884 1885 1886 I887 I888 I889 1890 1891 1892 1893 I894 1895
Judges created by the CONSTITU- TION of 1869.
Three Additional
LENGTH OF SERVICE OF EACH JUDGE OF THE COURT OF COMMON PLEAS.
Charles P. Daly
.41 years.
.6
*Joseph F. Daly .25
D. P. Ingraham. . 20
R. L. Larremore
.20
John T. Irving
. I7
M. Ulshoeffer.
.16
66
** Charles H. Van Brunt.
. 14
George M. Van Hoesen
.14
John R. Brady.
.13
*H. W. Bookstaver
II
H. W. Robinson.
9
Fred. W. Loew
7
Henry W. Allen.
7
L. B. Woodruff
6
*Henry Bischoff, Jr.
6
*Roger A. Pryor ..
6
William Inglis
5
Henry Hilton ..
5
Albert Cardozo ..
5
*L. A. Giegerich. 5
H. C. Van Vorst.
I
*** George C. Barrett.
I
*Still on the Bench; transferred to the Supreme Court by the Constitu- tion of 1894.
** Still on the Bench ; elected to the Supreme Court in 1883.
*** Still on the Bench ; elected to the Supreme Court in 1871.
Judge Larremore resigned on account of illness with eight years of his term unfilled and Judge Charles P. Daly was retired on account of age at the expiration of his sixth consecutive term of judicial office.
The Court has been noted from the fact that its justices have, with rare exceptions, been eminent jurists, and that every noted advocate in the City of New York has appeared at its bar.
The original roll of the Court from 1821 to 1848, during which period every aspirant to the Bar of the City of New York had first to be admitted to practice in the Common Pleas, shows almost every New York name which was prominent at that period, whether in the legal, social or business world. In those days every
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*Miles Beach. I6
..
66
66
would-be lawyer had to pass several examinations be- fore he was admitted to full practice.
He was first admitted to the Common Pleas as attor- ney at law. After three years of active practice he ap- plied for admittance as counsellor at law to the Supreme Court. He had also to pass a special and supposedly equally thorough examination in the Court of Chancery.
This original roll contains the names of those ad- mitted to practice law, the dates of their admittance to practice, and the oaths to which they were com- pelled to subscribe. The first was of course the usual oath to support the Constitution, and uphold the dignity of the Court.
And then came an oath indicative of the times, but of interest at any period, the duelling oath, which reads as follows :
I, -, do Solemnly Swear that I have not been engaged in a Duel by sending or accepting a Chal- lenge to fight a Duel, or by Fighting a Duel, or in any other manner in violation of the act entitled " An Act to Suppress Duelling " since the first day of July in the year of our Lord one thousand eight hundred and six- teen, nor will I be so concerned directly or indirectly in any duel during the continuance of the said Act and while an Inhabitant of this State.
The roll includes the names of men who became em- inent as lawyers, judges or statesmen, with the year of their admittance to practice .*
Among these occur, in 1823, Thomas L. Wells, Sam- uel Verplanck, Abraham Ogden, Jr., William Betts.
*As the original roll of the Court is far too long for publication in this volume, a selected list is here given of such names as have appeared most prominent or familiar.
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In the year 1824 appear the names of Judge William Kent and Philip Hamilton and D. P. Ingraham, after- wards Judge of the Court of Common Pleas.
In 1825 appears the names of William Inglis, after- wards Judge of the Court of Common Pleas; Francis Griffin and Gen. John A. Dix, afterwards Governor of New York, and F. Brockholst Cutting, and E. C. Ben- edict.
In 1826, N. Bowditch Blunt, afterwards District At- torney, and Judge Thomas S. Brady, the father of John R. and James T. Brady; Philo T. Ruggles and Charles Edwards.
In 1827, D. Graham, Jr., Pierre M. Irving, Charles A. Clinton and Judge T. W. Clerke, and Daniel B. Tal- madge.
In 1828, Judge Benjamin W. Bonney, Edward Sand- ford and David Dudley Field.
In 1829, A. D. Russell, Judge John A. Lott, John Mckeon, afterwards District Attorney, and Benjamin D. Silliman, who is at this writing the oldest graduate of Yale College, and one of the oldest living members of the New York Bar.
In 1830, Robert H. Morris, afterwards Mayor, Re- corder and Judge; Robert R. Lansing, Peter Wilson and Hamilton Fish, afterwards Governor of New York, U. S. Senator and U. S. Secretary of State.
In 1831, Edgar S. Van Winkle and Judge Henry E. Davies, the father of Julian T. and William G. Davies, both well-known members of the living bar.
In 1832, Alexander Hamilton and Corporation Counsel Robert J. Dillon.
In 1833, Albon P. Mann, Judge Henry P. Edwards
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and John T. Irving, Jr., and Thomas A. Brady, brother of John R. and James T. Brady, and Henry C. Murphy.
In 1834, Judge William Minot Mitchell and Nelson Chase.
In 1835, James T. Brady, Theodore Sedgwick, Judge William H. Leonard and Judge Gilbert M. Speir, C. J. DeWitt and Edward DeWitt.
In 1836, Judge Joseph S. Bosworth, Judge Claudius L. Monell and Andrew Warner, who was afterwards one of the four clerks. of the Court of Common Pleas, and is now, at the age of ninety, the president of the Institute for Savings of Merchant Clerks.
In 1837, Horace F. Clark, Luther R. Marsh, Hiram Barney, Augustus Schell and Charles E. Butler.
In 1838, John Jay, John W. C. Leveridge, Judge John W. Edwards, William C. Noyes and Benjamin F. Butler, the father of William Allen Butler, the leader of our elder bar, and grandfather of William Allen But- ler, Jr., the president of the Lawyers' Club of the City of New York.
In 1839, Chas. P. Daly, for many years Judge, First Judge and Chief Justice of the Court of Common Pleas, and Vice-Chancellor Lewis H. Sandford.
In 1840, Recorder James M. Smith, Jr., Judge Charles A. Peabody and William J. Hoppin, for many years secretary of our legation to Great Britain and Edward W. Stoughton.
In 1841, John Riker and Henry L. Riker.
In 1842, William T. Horn, John R. Brady, afterwards Judge of the Court of Common Pleas and of the Su- preme Court; Nelson J. Waterbury, afterwards Dis- trict Attorney, and Judge Enoch L. Fancher.
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In 1843, John E. Burrill.
In 1844, Judge Charles A. Rapallo, Samuel J. Tilden, afterwards Governor of the State of New York; John E. Devlin and Charles Price.
In 1845, William C. Barrett, Judge Abraham B. Tap- pen, Judge Ogden Hoffman, Jr., John J. Townsend and Henry A. Cram.
In 1846, Andrew H. Green, Henry Hilton, after- wards Judge of the Court of Common Pleas; Judge Henry P. McGown, James W. Gerard, Jr., and Henry Morrison.
As the Court of Common Pleas was the County Court of New York County, it had exclusive jurisdiction in certain actions.
It was the Court of Impeachment for municipal and minor judicial officers. Until within a few years it was the only Court having jurisdiction in cases of forfeited recognizances, or in cases where bonds when confis- cated became the property of the City Treasury. Until recently it was the only Court which could give an in- dividual the legal right to change his name.
The greater part of lunacy proceedings, mechanic lien litigations and insolvent assignments came before the Court of Common Pleas. It was also the Court where contested wills were tried before a jury. Its equity powers were co-equal with those of the Supreme Court. In connection with the Supreme and Superior Courts, nearly all of the naturalization of the county was done in it-only a small percentage of certificates being issued by the United States Court. Its appellate powers were more varied than those of any New York Court excepting the Court of Appeals.
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Peter Augustus Jaya
The Supreme Court heard only appeals from its own and from the Surrogate's Court. The Superior Court was confined to appeals from its own decisions. The Common Pleas, in addition to the appeals from its own decisions, passed in review on appeal, such judg- ments of the City Court and the District Courts of New York as were appealed. There are six judges of the City Court and eleven District Court Judges. Legisla- tion is often inaugurated in the lower courts which keen- ly affect the general public. As the decisions on appeal of the Common Pleas were final it determined the law, so far as these lower courts were concerned, on all mat- ters presenting questions not distinctly adjudicated by the court of last resort.
The first suits in the Elevated Railway cases were brought in this Court. The foreclosure of the little spur built by the first believers in the elevated system, which ran along 9th avenue, through that part of the city known as Chelsea, near the Episcopal Theological Sem- inary, was brought in the Common Pleas.
Until near the end of its existence the Common Pleas was the only Court where one might apply for an "order " or permission to change one's name.
Its reports show no end of queer wishes in this re- spect. One gentleman goes at great length to state his objection to his own and, in fact, to all names, and wishes to be allowed to change his name to the letter "A." That the matter was not to be laughed at is shown by a long opinion by the Chief Justice denying the application.
From 1821 to 1854 the Clerk of New York County acted as Clerk of both the Supreme Court and of the
33
Court of Common Pleas. In 1854 an act was passed creating a clerk of the Court of Common Pleas to be ap- pointed by the Judges of the Court. The Judges selected Andrew Warner, who served one 'year. He was suc- ceeded by Benjamin H. Jarvis, who served one year, and from then to 1896, when the Court passed out of existence, there were only three clerks, Nathaniel Jarvis, Jr., Samuel Jones and Alfred Wag- staff, and all were members of the New York Bar.
Mr. Warner is to-day the President of the Institution for the Savings of Merchants' Clerks. Mr. Jarvis, after serving for over a third of a century, resigned in 1889. Judge Jones, coming of a family of lawyers, several of whom were on the Bench, retired in 1892. Senator Wagstaff, who served as Clerk from 1892 to 1896, is now the Clerk for the Appellate Division of the Supreme Court for the First Judicial District of New York.
On the walls of what was the General Term room in the Court House, may yet be seen the portraits of Judge Ulshoeffer, Robinson, Brady, Daniel P. Ingraham* and Charles P. Daly. The adjoining room contains an alto relievo of Judge Irving and a bust of Thomas Addis Emmett. The inscription on the latter tells that Mr. Emmett died "among these benches, within these official walls." A bust of Alexander Hamilton adorns the furthermost corner.
The decisions of the Common Pleas since 1850 have been reported in twenty-three volumes, four of which have been edited by E. Delafield Smith, two by Judge
* The portraits of Judges Brady and Ingraham have, since Jan. Ist, 1896, been removed to the rooms of the Appellate Division of the Supreme Court.
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Hilton and sixteen by Chief Justice Charles P. Daly. In addition to these, known respectively as E. D. Smith's Reports, Hilton's Reports, and Daly's Reports, other decisions are to be found in the voluminous Abbott's Reports (both series and new cases), Howard's Practice Reports, The New York State Reporter, The New York Supplement, The Miscellaneous Reports, The Civil Procedure Reports, The Weekly Digest, The Law Bulletin, and The New York Transcript, The Daily Law Register and The New York Law Journal, the last three being successively the daily official papers of the county.
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A RESUME OF THE MINUTES OF THE COURT OF COMMON PLEAS OF THE CITY AND COUNTY OF NEW YORK SITTING AS A COUNTY COURT FOR SPECIAL PURPOSES.
T HE book of minutes of proceedings by the Judges of the Court of Common Pleas, outside of their ordinary judicial functions, commences with an entry of June 2d, 1832, recording their appointment of a District Attorney according to the power then vested in them. The Court at that time consisted of John T. Irving, First Judge; Walter Bowne, Mayor; Richard Riker, Recorder; and the Aldermen of the city, and they re-appointed Ogden Hoffman, the then incumbent of the office.
IMPEACHMENT OF DAVID M. COWDREY.
The Court convened again on January 26th, 1833, to try David M. Cowdrey, Clerk to one of the Assistant Jus- tices of the city, for official misconduct. On the second day appointed for the hearing of the charges there were present John T. Irving, First Judge; and Aldermen Cebra, Sharpe, Ferris, Rhinelander, Meigs, John Palmer, James Palmer, Mandeville, Woodruff and Mur- ray. A quorum being present the Court proceeded with the trial. Justice Eber Wheaton, the prosecutor, was represented by Charles O'Conor as counsel, and the accused, David M. Cowdrey, by Francis B. Cut-
36
le. I searcy.
Mal Bouche
Attrition Ris
ting. The trial occupied seven days. Witnesses were examined and the Court, having advised in the mat- ter, after due deliberation, removed Cowdrey from his office.
APPOINTMENTS FOR DISTRICT ATTORNEY.
The Court was next convened on May 22d, 1835, to appoint a District Attorney. The First Judge, the Re- corder and ten Aldermen were present (Labagh, Taylor, Benson, Lamb, Delamater, Purdy, Fickett, Varian, Lovett and Nixon), and Thomas Phoenix was appointed.
The next appointment of District Attorney was made June 4th, 1838, Daniel P. Ingraham being Associate Judge, Aaron Clarke, Mayor, Robert H. Morris, Re- corder and Benson, Thomas, Lynch and Thomas G. Talmadge, Aldermen. James R. Whiting was appointed.
TRIAL OF JUSTICE JOHN M. BLOODGOOD.
On February 19th, 1839, the Court was convened to try John M. Bloodgood, one of the Special Justices of the city, upon charges. Michael Ulshoeffer was then First Judge, Daniel P. Ingraham, Associate. The Re- corder, the Mayor and fourteen Aldermen were pres- ent. George F. Talman appeared as counsel for the prosecution, while Charles O'Conor, Francis B. Cutting and John A. Morrill appeared for the accused. The charges were dismissed for want of verification by oath, and as deficient in specifications sufficient to author- ize the Court to proceed thereon.
TRIAL OF JUSTICE HENRY W. MERRITT.
The next official tried before the Court was Henry W. Merritt, a Special Justice, and the Court convened
37
for the purpose on April Ist, 1840, with Judges Ulshoef- fer, Ingraham and Inglis, the Mayor, the Recorder and twelve Aldermen present. The District Attorney, James R. Whiting, appeared for the prosecution and Francis B. Cutting and Charles O'Conor for the accused. Mr. Cutting objected to the charges as not in due form. The Court adjourned to consider the question and sub- sequently decided that the charges were sufficiently au- thenticated to put the accused upon his defense. The vote upon this decision was as follows: In favor of sus- taining the charges, the Recorder, Judge Inglis and seven Aldermen. Against the sufficiency of the charges, Judges Ulshoeffer and Ingraham and three Aldermen. The trial was ordered to proceed on April 7th, but upon that day Mr. O'Conor filed a plea to the jurisdic- tion of the Court and the matter was adjourned to April 8th, when the plea was overruled. The accused then filed a challenge to the competency of the Mayor and of the Aldermen of the city to proceed or act as judges of the Court in the hearing of the matter. The challenge was overruled. Whereupon the accused filed a demur- rer to the charges. The demurrer was argued at length by Mr. Cutting, the District Attorney, Mr. Whi- ting and Mr. O'Conor, and the demurrer was sustained by the Court with leave to the District Attorney to re- new the charges amended and verified, and for that purpose the Court resolved to assemble on the 11th of April. On that date charges and specifications were again presented by the District Attorney against Jus- tice Merritt and he was required to answer. He was represented by the same counsel, who renewed their motion to set aside the pleadings for irregularity, their
38
plea to the jurisdiction and their challenge to the com- petency of the Mayor and Aldermen to act as judges, all being overruled. The accused then filed exceptions to the first and second charges and pleaded not guilty to the third charge. Judgment was given in his favor to his demurrer to the first charge. Argument was then heard upon the demurrer to the second charge and this consumed three days, ending in the demurrer being overruled, one Judge and four Aldermen voting to sus- tain the demurrer and one Judge and six Aldermen to overrule it. Judge Ingraham not having heard the argu- ments on the demurrer to the second charge did not vote. The trial of the issue upon the third charge, to which the accused had pleaded not guilty, was then proceeded with and consumed eleven days, eighty-one witnesses being sworn and examined. The cause was then summed up, Mr. O'Conor occupying seven and one-half hours in his address, Mr Cutting four and one-half hours, and the District Attorney three and one-half hours of one day and the whole of the next. The Court was ad- journed on account of the illness of the Recorder, and from time to time until June 9th, 1840, when judgment was rendered acquitting the accused on the second charge, the Recorder and two Aldermen being in favor of a verdict of guilty, and the three Judges and two Al- dermen voting for not guilty. As to the third charge, of which there were three specifications, the Court was divided on the first and second specifications, the Re- corder and three Aldermen voting for guilty and the three Judges and one Alderman voting not guilty. As to the third specification, there was one vote for guilty by Alderman Nash, and seven votes for not guilty by
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