The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-07-26

Superior CO1ft-speelal fern

othvs-This IL o motion brought before me by an
show cause why An order should not be made that
the plaintiff give security to the defendants (Other
than the Mayor. Aldermen, and Commonalty) in the
@m of one hundred thousand dollars, pursuant to the
222d section OF the Code Of Procedure. The motion
is founded on affidavit OF the defendant, Jacob
Sharp stating that he is President of the Broadway
Railroad Association, an association orgsnEed under
On the I'D day Of April last deponent was served
with cory Of the injunction issued IN this action
against the construction of the Broadway Railroad;
that such injunction has BEEN and still is the cause
Of great injury and damage to the defendants COM
posing said association, which damage, in Opponents
opinion, amounts to at least two thousand dollars a
month; and that, as deponent is informed and be-
leves, no security on the granting of said in
junction was required or given. The motion is
Opposed, on affidavit of the plaintiffs attorney
containing the following statement oil facts The
action originally brought against the Mayor, AL
dermen and CoDimonalty of this city, to restrain
them from granting to Jacob Sharp and others, the
privilege of constructing railroad in Broadway,
and an injunction to that effect was granted by Judge
Campbell upon the fling of the usual undertaking.
subsequently, after the Injunction had been served
upon the Mayor, Aldermen and Commonalty, they
proceeded to make the prohibited grant and it was
with full knowledge Of the injunction, accepted by
the other defendants, who were thereupon made
parties to the suit by supplemental BILL aud on the
10Th of April Judge Emmett ordered an injunction,
on the usual undertaking given by Alexander T.
Stewart as security, restraining them from laying
the railroad. The undertaking, as the aid ivit posi-
lively states, was duly approved, as to form and
suficency, by Judge Emmett, and was filed by the
deponent on the 18th Of April with the clerk of the
court with whom it still remains. Since then the
cause has been brought to trial or final hearing
before Judge Duer; aud the affidavit says, that on
the hearing, proof was offered on the part of
the defendants, a. a part of their case, that if
they should construct the railroad they could not
run it, according to the terms of the grant, with
out loss Of at least half million of dollars
wear. The affidavit sets forth the testimony Of Ell
mund R. Sherman TO this effect, which it is unne
Bherman's was offered by the defendants upon this
point Besides the Injunction in this case restrain
ing the defendants fr m making the road, similar
injunction, at the suit of other plaintiffs, has been
granted against the defendants in the Supreme Court
and is still In force. Upon this statement OF facts,
the plaintiffs counsel insists that the defend ants
not entitled to the security which they now move tor
If no undertaking had been filed on the granting OF
Jhe Injunction By Judge Emmett the defeuoants
would very clearly have been entitled to be-
nefcial remedy than they ask for; for they wonld
have been entitled to move to set the Injunction
wholly aside, having been rregularly issued; the
law requiring such an undertaking to be given, and
the Judge having no power to dispense with it. Still
they may waive TIE rregularity, aud move that the
bond which omitted to be filed then shall be
filed now. But the defendants are not in reality en-
titled to relief OF any kind on the ground that
bond was filed. The affidavit of Mr.. Sharp merely
says that he is informed and believes that no security
was required ard given; while the affidavit of the
plaintiff attorney says that he himself filed it in
the clerks ice the 18th Of April But the de-
flee ald if his motion, therefore, cannot be sustain
ed for the want one, it ought to be granted, be-
cause the security directed by the judge on granting
the injunction is wholly inadequate to the damages
which the defendants will sustain by being prevented
fommaking the road. shall pass by all other ques
tions raised on the argument to consider whether,
Judge Emmett having determined what security
should be given on granting the Injunction, can
now entertain motion to give greater or ether Sc
Curity / am not aware of any cases in which this
question has arisen, nor has any been referred to by
the counsel OF either party must therefore decide
1t upon the provisions of the Code and the previous
practice in cases of Injunction The 222d section of
the Code provides that
Where is made by statute to security
upon injunction. TIE court Or Judge shall require
writtsn VI deraArg on the part of the plaintiff with or
without effect that the pl intif will ray
10 the party epjoiped ch Damages not exceeding
amount to be specified. he sust,in by of
the INJUNCTION If The court shall finally decide that the
plaintiff entitled thereto The damages may be
ascerainsd by reference or otherwise as the court
shall direct
This is the only provision applicable to this case
and is the one under which the original undertaking
was required. as well as that under which new one
is now moved for 1t appears to me that the IN
junction and undertaking are one entire ndlnsepar-
able subject TO be dis osed of and OF course accord
ing to his discretion, by the Judge who grants the
Injunction. The law does not prescribe or fix the
amount or sufici,ncy of the security, but commits
both to the judgment q the Judge, for the very evil
dent reason, that both ought to depend on the
particular circumstances OF every case. In deciding
upon them, il is tor the Judge to consider the nature
OF the plaintiffs case. the evidence which he has
produced to support it, and the probability of his
finally establishing his claims, well as the extent
OF the defendants damage IN case the plaintiff
9 Iould fail. case may be so clear, as not to re-
qure any security, except as compliance with the
statute while Oh the other hand 1t may be so
doubtful that the Judge ought not to grant it, unless
the defendant Is carefully and fully Unidentified
against injury All these considerations are pre-.
scented to the Judge who grants the injunction,
in such manner that he may dispose OF the ques.
tion OF security. after having duly considered
them all for the tlOu must he moved for
papers containing sufficient statement and verif-
cation OF all the facts or the Judge viii eitherrefuse
to grant it, will he is empowered to do, direct
notice of the motion to be given to the defendant
before he grants il. But the law does not III this,
more than in any other case of error leave the deen
dant without remedy, if the Judge should erro-
neously have received inadequate security. lie may
at any time himself move, before any Judge, and up
on any proofs which lie can procure to have the
Injunction dissolved and this motion again brings
up together, not only upon the plaintiff S showing,
but upon the defendants, both the subject Of niunc
lion and OF security for the judge who hears 1t has
as complete power over both, as the Judge who
granted the mi notion &c parte; and if he should
refuse to dissolve tue injunction or to modify it, he
may still increase the amount Of security indefinitely,
or may require additional suTeties, until he is salts
fed of their sunicency. Nor is this the only remedy
which the defendant has He can again, the
hearing or tia Of the cause after the parties have
made, respectively, final proof OF their case, desire
the Court to grant him additional security; and the
whole SUBJ ect Is before the Court, to be disposed
of as they may think proper, there were sufficient
doubt about tie case and the security were made
quate, the Court would probably order better secar
ty to abide the event OF an appeal. Here are three
successive occasions which the suficiency of the
security may be determined but it viii be remarked
that upon each occasion there is presented to the
Judge or Court not only tie question what damage
the defendant may sustain, but also the question
what is the position and degree Of strength OF the
respective parties rights The defendant. however
has not thought proper to avail himself Of any such
occasion. He has not moved to dissolve the inunc-
tlOp did he. the recent trial nai nearing,
before Judge Duer desire to have better security.
But he now moves before me, upon an affidavit
stating the naked fact of damage, AMI when &C
cording to tue views Of his counsel, other fact
ought TO be stated for security, to the amount
of one hundred thousand dollars According TO my
views OF the Law, such has not been made he