The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-11

sfusing TO have his printing done at the printing once
that snySody in IL. Employ Of sd 40. the
said Maurice strskosch any other, Mr. Fry did not
Of Ssponss he would rs 'ss of Ss
HERALD And deponent says that he has NO knowledge
Of any trsnsacoes which have been done in his name
Ii informed his late cashier lent moneys depcnent to
said wsrdsn Corbyn, without the knowledge Of depo
and that said Sheridan Corbyn personally unknown TO
deponsnt and he has no feeling 70, Or against him
Sworn before me, this 9th day Of March, 1855.
BENJAMIN GALBRAITH, Commissioner of Deeds.
POINTS FOR DEFENDANT ON PLAINTIFFS NOTION NOW
TO BRING IN WITNESSES TO PROVE sTRAKOsCHs
ABSENCE.
First The motion is entirely unprecedented
Second 1t supposes, first, that II IL had been made
at the argument on the appeal would at the last term
have been successful and second that though made
then, the Court will hear it now.
1hird.-The Court will not open the case for the
purpose of letting in this notion
Is il clear that the Court has the power to order
rehearng of the appeal For this s In effect attempt
10 obtain a re.hearing. The Code decarss-sec. So
when appeal shall be re heard DOES not that by i'm
pcaton exclude u hearing for any other causeY
2. But supposing it to have the power, yet the
straints it imposes itself will not allow 1t to re- hear
this case. Its dignity and the respect which it
requires and the orderly conduct Of Its proceedings
forbid it. The parties have had their day in court If
allowed in case, they viii be asked in
ALL The constitution OF the Court makes it partc arly
nconvenient, only three judges generally sitting at the
gene al term, "a Mclean, 264; Wend 1875; Is Wend,
263) If bearings allowed, they viii always be
attempted when the Elk Judges are on the bench.
g. The courts have always leaned against hearings
There IL sort OF tradition the bench that they
injurious, and to be discouraged.
4. There were other points in the argued at the
general term, on which no opinion was expressed
s. The plaintiff has acquiesced in the dscson, and
under noticed the for trial at the present term
It is submitted therefore, that the Court will not grant
this application, for these reasons, If there
others, that the has been fully heard
fully considered the order for trial entered and
the cause noticed for trial.
Fourth.-If, however, the decision Of the general
to be opened the application examine
witnesses to supply the defect Of proof at the trial.
l. The jurisdiction of the general term is purely ap
peate and that implies that it shall decide the case
upon the grounds the special term-Code 81
3 Tie deposition OF witness taken conditionally
only be read after it has been proved that he is
ABSENT The proof Of absence cannot be made sup.
piled after the deposition is given in evdence-2R s.
s. The cause was heard at the last term upon ex.ep
tons, as well a. upon case. An exception cannot be
obviated by proof at the argument of the appeal.
a. The instances in which proof has been heretofore
permitted to supply omission at the trial are those in
which the proof documentary and could not be con-
trsdicted and the motion addressed to the dscre
ton Of the Courts John. cas-, 12S; 10 Wend, $685.
Fifth The Code gives no countenance Whatever to
this motion 1t Ia not case o. amendment" If it
were otherwise might always supply detective proof
on an appeal; and proof might well be introduced
eide the other to reject deposition. as to ad
init it. The word "proceedng," in the view Of the
Court of Appeals, does not include Affidavit CONS
GIL " To supply omission in any proceeding" in
section ia, refers to omission in a record paper
otherwise might supply omission to appeal to
give evidence-See S. S. ia 327; 7P II. los, p. r.
SOL
Sxth.-If however, the one In which all the
obstacles before mentioned removed and the court
would open the and the omission might be sup
piled by proofs ut the bar, yet 1t would be matter
resting in the discretion Of the court and governed by
considerations affecting the turherance of justice In
this justice would not be promoted by the ad
mission:
The circumstances under which the deposition was
taken could not then be shown purpose of dis
credting the testimony OF Strak0sch
2 Nor could 1t be shown that the deposition not
entitled to be read, might be done upon trial
ar, S., 1898, sec. s.
As it stood upon the last trial. the defendants counsel
rested upon his convection that the Testimony
improperly admitted and gave proof his part to
the Opposition the witnesses. The affidavit which
the to examine made, does not show the resi-
denee Of Str akosch. as was required by law.
3. The witness might be mpeached on new trial.
The deposition of Ole Bull shows that this might pr0ba
bly, be done with success.
A. The witness may be con.radioed on trial. The
DEFENDANTS affidavit stating positively that Strakoschs
mopy false should lead the court TO think that
justice required a examination OF the case.
b, The witness examined in extraordinary haste
the notice being short that the defendant could not
get his council to attend
O. There is reason think that the application for the
examination made collusively-2 s., 1892, sec 4.
There positive Testimony in plaintiffs sidav Is
that Strakosch not in the state the 9Th Decem
ber Patti the only person who pretends to know tes
titles from morsndum but by whom the mem oran
dun made does not appear
The Court reserved its decision.