The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-08-25

r. nssan1v oaarsaA.
sUrEEius OOuur-AT o4AMnans.
Before Hon. Robst Emnst.
AU0. "a Thomas e. Duvis and CeurlGSdt
Peimr agaiasf The Mayor, &C., Jacob Sharp and
otkus.-This is aIoton to dissolve The injunction
granted against the defendants, other than the
Mayo ,asssns s 20 sx e ,;n them
broadway. Or for such Other or further order re
lief - may Be just The motion is founded on an
affidavit q the defendant, jacob Sharp, the Pres-
ing Of the defendaats. other than the Mayor, &c,
which Staten that the injunction was granted on the
i5th Of April last parts that the only security
give1 Or required, on granting the same, was an IN
deftaking by Alexander Stewart in the sum Of
81 500; that Issue has been joined, and the cause
brought 10 trial the merits, and heard before
Judge Duer, at the special term in June last,
rendered Judgment s A therein that the Injunction
has been and still ID. the cause Of great injury
and damage to the defendants who make this
motion, and that, in his opinion, such damage
amounts to at least % 600 month. On the argu-
ment. It was stalled that, although the motion was
ostensby for the dissolution Of the injunction, the
real object Of the application was 10 obtain security
IN . larger amount than was required and given y
the undertaking when the injunction WAS granted;
and that amount, it was commended, should n0 De
leas than 100000 have no doubt that the proper
mode Of obtaining increased security in such case,
Is by motion dissolve the Injunction, or tor other
relief and this point, concur entirely with Judge
Paine, before whom q motion was made In this case
in July last, which denied by him. because that
motion was s not q ~ the but merely
The defeBdants, however, would seem to entertain
different view, a. they have appealed An JsA0s
Paine's decision, and such appeal is ns9 psn1ing.
4 appears, however, on their own showing, that
this cause has been brought to q hearing and
tried on its merits, before one Of the Judges
Of this court, sitting in special term, and
that such Judge has it now in his charge for the
purpose Of deciding all the questions embraced
IN It. The merits OF the action necessarily involved
not only the question Of dissolving retaining the
injunction but the proprety in case it should be re-
from the plaintiffs All the relief, therefore, that
could be asked or granted, on the present motion,
has been already sought from Judge Duer, and now
lies within his judicial authority; and the question
Is thus broadly presented whether / can entertain
this motion without violation not only of the
courtesy due, unoer such circumstances, from one
Judge to another. but of my strict judicial duty.
To obsiate this difficulty il was stated b. the coun-
sci for the defendant that when notice fthis motion
given more than twenty days had elapsed
since the court al which the trial before Judge Duer
took place; and reference made to section 267
of the Code, which provides that upon trial of
question ofact by the court its decision shall be given
in writing, and filed with the clerk within twenty
days after the court at which the trial took place.
Upon this it was commended, that inasmuch as
Judge Duer had not decided this cause and filed
his decision in writing with the clerk, within such
twenty days. he could now make no decision, and The
trial before him had now become q nuty. shall
OF the Code, or OF the above conclusion drawn from
it, to such an action as the present involving not
only numerous and difficult matters offact, but grave
and intricate questions OF law and equity. II the
fore Judge Duer has fallen through, because his de-
cision has not yet been rendered. it is sufficient
answer to 1t that the Supreme Court have expressly
held that provision in the Code to be merely drec
tory; that q Judge did not lose hs authority
to file or even make his decision. by delay
beyond the twenty days, and that it would be
ntolerable II cause had to be 1ogircd because
the Judge, perhaps from sickness or pressure of
business, or other cause, had not fled his deci-
ei0l within the prescribed time. people, ex rel,
Cahoon agt. Dodge, Pr. Rep 48) But have con-
sideIed my duty in Justice TO Judge Duer, to in
torn myself OF the facts 10 relation to that trial and
have. ascertsiDed that il was commenced on the
10th, and termiDsted in count on the goth June:
that eighty line witnesses were examined, and that
Tue testimopytsken amounted to upwards OF 1000
foiios; that by agreement between the counsel the
evidence was taken down by reporters in short hand,
in order that the court and counsel should be saved
from the delay and trouble OF taking notes. that after
the conclusion Of the trial in court the evidence was
kept open to enable the defendants to examine the
late Chief Justice Jones witness, (Which was
aiterv ards waived by their counsel) and that the
testimony taken on the uial written out from the
notes OF the reporters, WIS not received delivered
to Judge Duer until tue 10th Of July. In point
81 fact therefore, The duty OF examining or
cclsid ing the cause. for he purpose of deciding it,
did not rest upon Judge Drer until tina, days. and ii
twenty days be the maximum Of time which Judge
should lie allowed to examine thoroughly and under
ssandnely cause even so intricate voluminous and
important this that period from the time he was
put ia possession Of il, had not yet expired when the
pc sent motion set on foot; for it appears by the
otdasits annexed 10 the papers that notice OF this
motion was served on the 18th of August instant. II
should also be stated that within three days after
tne case was thus committed to him, Judge Duer d.
ected a re-argumeDt on certain points presented
by IT, That he had q perfect right to do this
cannot lie questioned, and that he did it with
- 90 &C.
tons discharge OF his duty, no one acquaint-
cd with the scrupulous fidelity with which he
performs his judicial labors can for moment doubt.
That rearQurent has not vet taken place. Such
VI opinion thai II would be an improper exercise Of
authority my part, TO make any order within the
scope Of this application 1t is not pretended that
junction; and If should upon this motion. made at
chambers, undertake to compel the plaintiffs as q
condition Of retaining it, to give the increased secu
rity now demanded, Judge Duer might ediately
afterwards render such order nugatory, by his pa
amount decree that the injunction should be perpe-
fual which would Of conrse be without security. His
Judgment would have been formed on all the facts
and circumstances Of the case developed by the testi
nouy, and illustrated BY the arguments Of counsel;
mine could only rest the opinion Of Thorp inte
rested party, and thai opinion not merely otherwise
unsupported. but decidedly contradicted by the evil
defendants the trial, and being the only portion
OF the testimony then taken which has been sub
mitted to me on this motion. have not deemed it
necessary to consider what weight should be given
to the other objections ade by the counsel for the
plaintiffs to the granting of this application, because
The ground upon which place this decision is Of it
sei' entirely satisfactory TO my mind and is presented
by the defendants themselves. 1 deny the motion,
therefore, a. being In the present position OF the
cause, premature and unnecessary but without
costs and without prejudice to these defendants to
make any similar future application, under diaercut
n cunstances
More Political "Reminiscences.
From the Albany Journal August %
The Rochester Democrat notices q discrepancy
between the New York Express and Buffalo id
rcYter 10 relation TO the conspiracy to reject Mr.
Everett. The Buffslo organ says