the defendant's time to answer until the hearing and determination of said motion, the defendant's time to answer having been previously extended in the orders of the court upon the motions for a writ of prohibition and to put the Attorney-General in contempt.

Upon the return of the last-mentioned motion, I appeared and the motion was argued and denied. From this decision the defendant McClellan took an appeal to the Appellate Division of the First Department and obtained from the Appellate Division a further stay of proceedings and a further extension of time to answer until the hearing and determination of the appeal.

The Appellate Division affirmed the order of the Special Term, from which order of affirmance the defendant appealed to the Court of Appeals. In the meantime the stay of plaintiff's proceedings and extension of time of the defendant McClellan to answer was continued.

I appeared in the Court of Appeals and argued said appeal on behalf of the people and the Court of Appeals affirmed the order of the Appellate Division and of the Special Term.

The defendant McClellan demurred and upon the argument of the demurrer the same was overruled, from which decision the defendant McClellan took an appeal to the Appellate Division, where the judgment of the Special Term was reversed and the demurrer sustained, by which decision William R. Hearst was made a party defendant.

I regarded the question of time as of more importance than the favorable result of an appeal upon the question of making Mr. Hearst a party defendant and I, therefore, served a supplemental or amended complaint making Mr. Hearst a party defendant.

Mr. McClellan opposed this motion, although the absence of Mr. Hearst as a defendant was the ground of his demurrer.

The defendant did not answer until July 2, 1907, there having been procured by him and in existence at all times from the commencement of the action to that time stays of proceedings and extensions of his time to plead, always against my earnest protest. He then served an answer, containing only a general denial.

On August 12th, Mr. McClellan served an amended answer, and then for the first time I was in a position to move the

case for trial. Having thus lost the opportunity of trying the action before the summer vacation, I moved it for the first Monday in October and claimed a preference.

In October, having waited since the middle of December, Mr. McClellan made a motion requiring me to give a bill of particulars, stating the particular number of ballots miscounted in every election district in the city and containing other requirements which I resisted in court. An order, however, was made requiring the service of such bill of particulars.

On November 1, 1907, the case finally appeared upon the calendar ready to be set down for trial. Over my earnest objections, the case was set over until the January, 1908, call. I immediately prepared a bill of particulars of all the facts called for, so far as my information extended, and the same was served on November, 19, 1907, whereupon the defendant McClellan moved for a further bill of particulars and to preclude the People from giving proof of any facts other than set forth in the bill of particulars which I had served. This motion was denied, from which decision the defendant McClellan took an appeal to the Appellate Division, which reversed the order of the Special Term and prohibited the people from giving evidence of any of the matter not contained in my bill of particulars.

Although not within the purview of this report for the present year I yet desire to say that the Court of Appeals have since reversed said decision and the People are no longer prohibited by said decision from giving any testimony which they otherwise lawfully might give.

This is a partial record of the obstructive tactics employed and the frivolous technicalities raised by Mr. McClellan to put off for a little longer a public inspection of the contents of the ballot boxes. Further dilatory methods will undoubtedly be employed to prevent the examination of the actual result of the mayoralty election in 1905.

It seems incomprehensible that the trial of this action could have been so long delayed, or that any man would desire to continue in the occupancy of an office the title to which is in question; but the time is near at hand when this action will be tried, and I shall continue, as heretofore, to press this case and procure

a judgment of the court that shall determine who is the lawful mayor of New York city.

The People of the State of New York, plaintiffs, vs. John

F. Ahearn, defendant.

On November 7, 1905, the defendant in the above action, John F. Ahearn, was elected president of the borough of Manhattan, city of New York, for the term of four years, commene ing January 1, 1906. On July 25, 1907, charges were preferred against him to the Governor, whereby he was charged with misconduct and neglect of duty in office. On December 9, 1907, the Governor, after hearing him in his defense, found him guilty of misconduct in office and removed him therefrom. On December 19, 1907, a majority of the members of the board of aldermen of the city of New York, then in office, representing the borough of Manhattan, voted for the defendant to be president of the borough to fill the vacancy caused by his removal from the office of president, and on the same day the defendant entered into possession of the office and still retains possession thereof.

On December 23, 1907, I commenced this action, which is an action in quo warranto, brought pursuant to section 1948 of the Code of Civil Procedure, to obtain judgment that the defendant is guilty of usurping the office of borough president and ousting him therefrom, and a copy of the summons and complaint was served on the defendant on that day.

LITIGATIONS

RELATING

TO PUBLIC SERVICE

CORPORATIONS.

The People of the State of New York, plaintiff, vs. Consolidated Gas Company of New York, defendant.

The Special Master, in his report, filed on the 24th day of June, 1907, in the "Eighty-Cent Gas Case," found the company's "franchise and good will" to be of the value of $20,000,000, and held them to be property upon which the company was entitled to earn a return. Answering the contention of the Attorney-General and the State Commission of Gas and

Electricity, that certain of these franchises had expired by limi tation expressed in the grant, the Master said:

"Whatever may be the defects in these franchises, the fact remains that complainant has their full use and enjoyment to-day, and no evidence whatever appears in the case that the right to exercise them has been attacked or even questioned by either State or municipal authorities."

Moreover, the Joint Committee of the Senate and Assembly, appointed pursuant to joint resolution, adopted March 6, 1905, to "investigate the gas and electric light situation in the city of New York," had reported to the Senate and Assembly, on May 3, 1905, as follows:

"It is doubtful whether the Consolidated Gas Company has any extensive rights in the city of New York. It appears that no franchise, other than the franchise to be a corporation, has been granted to the Consolidated Gas Company, and it would seem that several of the grants to the constituent companies have expired or will soon expire."

At the time of the Special Master's report, the State court had not yet passed upon my application to commence an action to vacate the charter and annul the corporate life of the gas company, which I had expected would be immediately granted; but, upon receipt of that report, allowing the company a return of $20,000,000 upon its franchises, whether valid or invalid, because their invalidity had never been challenged by the State authorities, I felt compelled to wait no further for the permission of the court, but to take such action as the law allowed me to take without such permission.

Therefore, on the 11th day of July, 1907, I commenced an action in the name of the People of the State against the Consolidated Gas Company of New York, asking for judgment that five of the franchises of the company, which it is now exercising, have expired and are not conferred by law upon the company; and for judgment that two other of the franchises obtained by it from its constituent companies are not held and owned by the

company and are not conferred by law upon it, and for the further relief of a judgment ousting the company from the exercise thereof. The franchises referred to above constitute all of the franchises of the company except its franchise to be a corporation. This action is pending.

In the Matter of the Application of the Attorney-General of the State of New York for leave to commence an action against the Consolidated Gas Company of New York.

The Consolidated Gas Company of New York refusing to obey the orders of the Legislature and of the State Commission of Gas and Electricity in the reduction of its prices, upon the pretended grounds that such orders would work a confiscation of its property, and it appearing that the litigation in the Federal court would be of some length, I determined that the State courts should be invoked to determine the legal status of this corporation.

Accordingly, before the Special Master had filed his report in the "Eighty-Cent Gas Case," and on the 24th day of May, 1907, I made an application to the Supreme Court, New York county, for leave to commence an action, under sections 1797-1799 of the Code of Civil Procedure, to obtain judgment vacating the charter and annulling the corporate life of the Consolidated Gas Company of New York upon the grounds: (1) That it has violated provisions of law whereby it has forfeited its charter and become liable to be dissolved by the abuse of its corporate powers, and (2) that it has exercised corporate franchises not conferred upon it by law.

The first charge was based upon the allegation that the company, during the period from 1901 to 1905, purchased a controlling interest in the stock of gas and electric companies in the boroughs of Manhattan and the Bronx, in the city of New York, for the purpose, and with the effect, of creating a monopoly therein of gas and electricity, in violation of section 7 of the Stock Corporation Law and of the Anti-Trust Act.

The second charge was based upon the allegation that the company is exercising franchises of its constituent companies which have expired by express limitations contained in the several grants, and that it is exercising pretended franchises of constituent companies, which it does not own, and has no legal right to exercise.