The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-26
The OperatIo War.
SUPERIOR COuaT.- aKkERAL TKRN.

SUPERIOR COUaT- GENERAL TERM.
Before Justices Oakley, Bosworth sIosson and Campbell
MARCH a.-Kar Aaret.et and icifc appellants,
dgaina Ole Bul, ycspoadent.--At the opening Of the
court day Messrs sandfcrd and Billings counsel for
appellants moved in the appeal taken from tho decision
mace at the special term discharsng the attachment
herein.
Mr. sandford in opening the argument contendsd that
although the contract upon which suit is brought
should be held by the count TO be void yet princi
pie OF law where vito contracts and performs services
the husband under II for those services
that the allegation In the affidavit that the Of $500
was due entitled the defendants to uner the
qudnum msrua; that one of the supplementary aaBda
Wits showed that Mrs. Marstzek had authority the
husband to perform for her benefit and that this
supplied any defect in the first papers that DESCENDANT
eosg the house gave plaintiffs right 10 sue, although
would b. ~ been due other wise that the plain
,s not bound TO stats the grounds Of their claim
particularly in order 10 obtain the attachment Mr..
In most earnest manner called upon tho court to re-
verse the decision at special term upon the grounds
fore stated upon each OF which ns commented At length
Mr.. l.. r. B,ik.ley, counsel FOR the respondent, 0e
Bull said IL TO him self - state that he id not
draw the contracts upon witch this suit g. brought
that they forced upon his client before he had
called into the opera affairs counsel that they
drawn up by Mr. watson, friend OF the painttas,
who IL evident from the contract itself no law
yer lie would not comment upon the manner IN which
in the papers which had up from the special term
for review He felt bound 70 every legal exception
that existed because he considered th form OF proceed
ing sglint Of the character and position Of Mr..
Bul most contemplate II the Madame nas performed
any services 70 which she IA entitled TO be paid there
was proper way 10 proceed 70 enforce her claim lie
then proceeded 10 review tbs argument OF PLAINTIFF
counsel as follows at loss 10 know where my
lear ned opponent nds any Law authorizing person 70
recover unGer void contract. Suppose the gento-
contend, that Mrs. Maretzek has performed
serytces, Goes that give her counsel the right 70
.
psended that sJe coula declare upon promss0ry note,
anu then la The next paragraph set forth promise 10
note as grounds Of her cisim " Would the allega.
tiop IN the affidavit I" that ths OF $500 due
thereon" upon which the counsel has laid 40 much
stress, entite her 10 under thai paper Tho
statute preserbes that application Tor attach
msut ne plaintiff shall set forth the grounds Of tho
nns em IA. means "a any'las @ssns . u t sh. ,,si
selves, stated, be suihciCnt Admitting counsel
eonends that there did exist understanding between
Maretzek aud his wife, that be might perform for her
benefit that does not tho vital defect In the
contract the inherent dlahoy in the wife to male
the covenants therein contaiasd or 70 perform them
when made II in the power OF the husband 70 With
draw his wife from the stage In the very midst Of the
performance of'an opera and matter what the lam
sge might be 70 the defendant, hs without remedy
either IA against the husband or the wife. Where
tua eoytIants entered into between parties unless
both re free from any legal disability TO make them,
and unless IL IN In the power OF each 10 enforce them
against the other both Of the covenants fall Counsel aid
there cited hll .ointe which Le
sboud nara up U the Court AMI he could not take
time IL reading them did he think bis opponent would
pretend to deny that such tas Lw The allegation
that the Of $500 due does not entitls plant
TO under the qudtvn mrruI because 1t retos
10 the contract and states that th due thereon
The afcavt does not aege that services have been
performed most essential allegation whore plAintIHs
sesk ~ reeover under the 9uagum rlr4u There \ not
prstenoe IN the papers Of any claim except upon tho
written contract and the paintf have declared upon
H. they must stand fall the coatract shall b. adj
Judged good or bad Mr. Bulkesy then Ia = yery clesr
and oresle argument answered the other p0iI raised
o. PLAINTIFF counsel and commented upon the afda.
vat. alleging that they contained sufficient ground
for holding the alta tmsnt either 70 the point %
cealmsnt or the assertion that defendant wa an ab.
sconding debtor and called the ateaton II the Court
the fact that the allegation In the afdavit va that
be had absconfsd was about 10 abscond +" which
equivalent 70 an assertion that person bal d3bs
thing. about 20 do quite anotbcr. After ninut.
exsmn ,n Of the details Of the ca lao clo-ed by char
actsreu IN no mid terms The attempt Of plaintiff u
attach 1f1dants property a. concealed debtor. when,
as " am rbey vel knsw, and tie Adayt sho vel that
the defendant hyna In pubic hotel In BtoA1w wRy,
dining st the public table AMI constntly In and aboat
all parts o the hotel md IN the public streets and place.
Of anu .smsni Even though ths counsel for piAnuhs
might produce hve hundred aidAVta Of persons ing
that they u nj know where they could 80 him would
vssh feather Ia ite scale sgsnst the evidence of
Mr. Csnstdn, proprietor u the New f0rk Hotel 80 al
n's esriE, hat cefsndant had for n0rs then thfse
nths Lived there oDsEly, Ike aay otEer guest 81 ths
boate
Tlslnt-s counsel followed With brist arganen, In
reply ~ rAd4Dg suppsmsntkry A0cAdb o. Mss
sa'et,h biz brother sfe. snd one gnsd by Large
unber % othsr rsrons, Nhi:h ssi that tsr ia DOT
know that defendant resided At ths Nos York Hotel
1hs Court took tLe papsrs-Ieoisea vii b gwen On
hcnday.