The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-04-20
COURT OF OYER AND TERM INER.
Before Hon. Judge Roosevelt.


The court met yesterday morning at ten o'clock.
The District Attorney said he should deem il
TO call another witness who was still absent after VIII IA
he should rest his case.
Mr. McKeon said he must insist that the District At
torney should elect which count in the indictment he
proposed to rely upon, there being two. The earne
counsel quoted 9th Wendell le3 IL Sergeant and Roll,
Ga as in point.
The Court said the subject had been fully examined
the late OF the Dorngers Any lesser degree of the
same crime might be found under higher charge.
The counsel for the defence said the were not
similar In this case there We're two several counts
charging different offences.
The Court oyerruled the application.
The examination of witnesses then proceeded with
William Vandenburgh, sworn-l know Mr. Fenety, and
knew him in the of 1858; saw him in the store
the Eighth avenue; my object in seeing him was to
make partnership with him in the latter part of July;
the fire took place before that was going to put in
about $1,000; came TO see him again according to
agreement / found the store closed and burnt out;
made inquiries about the business and received favor
able answer from the clerk.
John McClaren sworn-I worked at Fenety's store the
day before the ire; was employed in taking down the
shelves and boxes with tea canters and putting them
on the opposite side the fire the north side
the dome; got there on the morning Of the fire about
seven o'clock the boxes were in confusion outside and
the store looked though there fire there and
that's all saw matches there; in tearing down the
shelving were scattered the floor; sawdust
there agreed with Fenety TO go and buy horse in the
country; know 0Rourke; the next morning after the
nothing of it. asked him about tho sawdust also; think
he said he knew nothing about it the boxes were moved
Cross examned-I did not know that Fenety's horse
advertised for SALE he did not tell So the shelly
ing took down was not intended to be put up again.
my instructions were to put up flush wall behind the
counters the portions Of the shelving not used left
in the building.
James McKenna sworn-Am grocer know Matthew
oRourke; in my employment in Sept, 1853 he re-
manned nine ten days with me- had little
with ORourke relative to the fire in Fenety store
ed him how the fire he said there had been
talk about the sawdust in the boxes but he said it
customary and there was not tea store in the city that
had not the same and that Feney knew of the
fire than did have heard him say more than
Witness was not cross examined.
James Hawkins swoIn:-l live in Eighth avenue; am
in the liquor business; have known Feney by meeting
him in the avenue have had with ORourke
he said he had locked the door as usual took the key
Samuel Vanderheiten sworn:-Know Fenety, and have
seen ORourke had conversation with the latter few
days after the fire; asked him how it occurred and he
stated that he supposed it occurred from litter left
by the carpenters Mr. Fenety had previously made
assignment to his creditors and employed by them
in the store with Mr. Burdck whenFeney said the value of
his stock between 50 800 and 50, 400 Mr. Burdick
pointed out about $500 $500 worth of and coees
Cross-examined;-Became acquainted with Fenety in
consequence of dispute about $500 worth of goods
which had not been paid for retained by Messrs
Burdick and Cook perfected my claim to judgment on
the 18th of July.
Mr. waldron testified to having examined oRourke as
TO the circumstances of the fire. asked him when he
left that night if he locked the door to which replied
no had and had carried the keys home with him asked
him there was any fire in the store when he left and
knew nothing of the origin Of the fire. his theory
that it arose from matches accidentally gnting, from
q lighted segar from some smoking.
Mr. Boose decorative painter testified to having been
called upon by Fenety he wanted Chinese paintings to be
put upon the walls he said he in hurry for to be
done; promised to send him man to do it Monday
night he said he wanted something done superior to any
thing in the city, he said he intended to enlarge his store
Cross examned-Ihe cost of these to be about
500 stipulated that as soon as done they were to be
paid for.
William Newman sworn-Am a decorative paper maker;
he 70
the store with fancy Chinese paper; to have begun
in the latter end of July.
Cross eXampod1he paper to have cost about $50.
Jaraessvsres sworn-Am gas filter arranged Fenety's
storewftgas fixtures; il the oath of July that
did heast igo paid $40 from Fenety on the Saturday
bcfores3seeiipe.
Crossexamned-My bill amounted t. about s2O have
not been paid the balance.
Z. s Emmett sworn-Know Mr.. Fenety have seen him
in my Office saw Mr. O'Donoughue and Fenety in my Of
flee in April 1858 it Was in relation 10 chatel mort
gage which was to be entered into by Feney the policies
John Montgomery sworn-Am clerk; know Fenety
have been in his employment clerk and outdoor agent
drummer at first engaged at $500 but afterwards
had three per cent in the city and six in the country
sales effected was there the 18th of April in
the habit OF using candles Them the custom Of having
boxes made up, called dummies is in tea stores
they are filled with sawdust these dummies at the
time was there in April was in the habit of putting
out and taking in the boxes the sidewalk; they
generally put the door when taken in of them
contained tea and others sawdust the real boxes
generally placed in the
Cross. examined-I quit his employment in June; the
gas fixtures completed in April the candles
used for putting up the shutters in the evening" there
about thirty dummies in the store; the value of the
half chests would be than 800 there thirty
or forty of them; have from observation in the
large tea stores in New York. that the practice gene
raj one.
John 0'Connor sworn-Keep porterhouse; have been
on the police know 0Rourke; have spoken to O'Rourke
in relation to the fire. talked about the reports in
aton to Feney he said if he Fenety he would
the American Of BIS for SANDER; this might have
been week ten days after the fire.
Joseph 0'Donoughue, sworn-Am q salesman in my IA
theirs store; he is wholesale grocer at No 239 Front
street, Mr. Fenety in the habit of purchasing arti
Giles at the store in April Mr. Fenety gave mortgage
my father for $500; the policies have been since the
14th of April in my fathers possession know ORourke;
have known him since July last; the morning after
the FIRE Mr. Fenety down to the and told the
news of the fire; then went up to the place and
O 'RouIke; asked him what the the fire,
and he replied he did not know; he said he had put out
all the lights before he left he seemed much gitated;
he said persons had said the place had been fire
to- he had struck person for saying he said he
that there not better place in the Eighth ayenue
Fenety day whether tea in all those boxes, and
him it was good PLAN 0'Rourke around to my
store several times to inquire the insurance companies
had settled with my father he said he would take his
oath that Mr.. Fenety had nothing to with the fire.
Two or three other witnesses were examined, but
nothing elected The court then adjourned to
10 O'Clock this morning.