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


Present-Chief Justice Oakley, and Judges Campbell,
Duer, BeswoIth and Hoffman.
MARCH 10 Ed p. Fry Us. Jas. Gordon Bennett This
yas motion on the part o. the plaintiff under these
eircumstances At general term Of the court ON the
18th Of February last new trial was ordered on the
among others that the absence Of Maurice Stra
roach whose deposition read the trial, not
satsfactory proved On the 9Th instant, the plaintiff
obtained an order of Judge Campbell calling the de-
PENDANT TO show this day why he, the plaintiff,
shoud not be at liberty to introduce testimony to
roye that strai osch in fact absent from the city Of
New York at the time of the trial. This order OBJ
tanned on sdavitof Salvador Patti setting forth that
he and Strakosch were travelling together from the
month of November to the Goth Of December 1861
in the States of Ohio Virginia, Indiana, and in Canada
of the paiutif that he believed Strakosch absent
from the city at the time OF the trial. and that he had
applied TO one Sheridan Corbyn to make affidavit and
he had refused because he said Mr.. Galbrah the de-
feadant,s attorney, told him that he would make
epemy of the defendant he volunteered his testimony
and of the plaintiffs attorney, that lie believed he
could prove Strskosch was absent.
Messrs D. D. Field, John Townshend, and Benin Gal
braith appeared counsel for Mr. Bennett and read
the following afdavits and deposition and made the fol-
10 sing points
Ciiy and County Of Ne10 York ss.-Beniamin Cal
bath OF said city, makes oath aud says:-rhat he IL
the attorney the Defendant in this action, and has
had the sole coDouct of the defence of this action since
is that this to the best of de-
moments remembrance and belief the day calendar
Tor trial and was called on the 18th day of November
1853 but Opponent well recoects that il expected
that this would be the cay calendar for the
18th day Of November, 1873 that some time in the al
ternoon of the 18th day of November 1883 deponent
was we'd with the copy OF an order Of Judge Emme
for the conditional examination at p NJ on that day
at the private residence OF said Judge Emmet OF Mau
rice Srakosch witness in this cause that the said
order not served depjneat until late IN the after
noon the said l4th day Of November 1885, and that
Immediately after the said order served he (depo-
nent) went in search OF Fdward Sanford Esq. who
was then of counsel for the defendant in this action
and who was well acquainted with the facts and crcum
stances of this action but by OF the brief inter
val between the service OF TIE order and the examina
ton deponent unable procure the attendance Of
said Edward Ssndord, and Obliged to employ other
counsel OF less experience and skill and not well
quan ted With the facts and crcum stances OF the cause
and who had no opportunity for preparing for said ex
ton that deponept attended pursuant to said
der and the examination O. sad Maurice Strakosch
witness proceeded with and taken, and the said
Strakosch, in such examination, deposed-l am about
to leave the city professional tour which may last
from two TO three montns and that the plaintiff had
informed him said Strakosch that he, the plaintiff
thought this would positively be tried tomorrow
(that is the day after the said examination or the
day after that deponoat is Informed and believes
the said Maurice Srat osch did leave the city OF New
York about the 18th Of November, 1858, and de
ponent believes that no attempt made the part
of the plaintiff TO detain the said Maurice Strakosch as
witn So that he never served with subpGn8 TO
attend witness ~ this cause, nor any attempt made
to serve such subpoena; that for some cause,
which deponent does not now distinctly re
collect, this cause, although on the day cal
endar for the said 18th day of November, 1867, was
not called on, but was, as deponent believes to
down for the first day of the following December term,
and this called end commenced to be tried
the lft day OF said December term.
That Mr. Sherman, the attorney OF the plaintiff,
the 18th of November 1855 and when he obtained the
order for the examination OF the said Maurice srskosch
knew that the cause likely to be the DAY calen
dar and 10 be called for trial the 18th day of No
yember, 1858; and that the said Sherman could IL he
had Keen dis posed do have procured the attend.
ance OF the said Maurice Strabosch witness said
trial
And nent SAYS he believes the said Maurice S.ra
kosch lett the city of New York aud remained absent
therefrom until after the termuson Of the trial Of this
action for the purpose of avoiding rirG exam
ton on the trial. and that hs pretended musical tour
was olIy ar excuse to give color to his absence.
That since the trsl in this action deponept has OBJ
clifton to that adouced ON the trial OF this act aud
which will facts alleged by the to exist and
to constitute, with others good defence to this action
and depopept expects and believes that with the addition
of such newly discovered evidence, Gepouept will be
enabled subsequent trial of this cause to prove
the truth OF the ales bells and further that he will
be able TO prove the sad Maurice Strakoch wholly un
worthy OF belief
That ON the I'd day of March 1855 depone ut obtained
order Of Mr. Justice Campbell calling the plaintiff
his attorney to show the Sd day of March
1855, why commission should not issue 10 take the
Testimony OF certain witnesses in this action
two Of whom not eNsmlned the previous trial
ind depopent and the plaIutis attorney attended,
Tue return OF the SAID last mentioned ofner Wusn tue
Plaintiffs attorney applied to deponent for leave to
counteTmgnn a notice trial served by the plaintiffs
attorney Geponent and to I'D ourn the motion for
eommisiion 10 both OF which requests deponent as
scented
That TO the best Of deponents knowledge and belief
he has Sheridan Corbyn. in TIE affidavit OF
the plaintiff erred to, than twce-frst, the
trial in this actoo and secondly, sinos the said trial.
and that was unoer these circumstances:
The defendant and snu Is the holder 81 q
promissory note payable on demand, for money lent
by the cashier OF the defendant to wariei
Corbyn, the father of the SAID Sheridan Corbyn
and - auckland, and cf which note the sad
Warde Corbyn and the said auckland the Makers
and the eaid note being Overdue and IN the hands OF de
ponent Tor cole elton the said Sheridan Corbyn called
deponent, and informed deponent that his father
the said Warde.l Corbyn Europe, and that his
father had several notes out and inquired of deponent
what proceed ngs the holders of said notes when
due, could take against the property OF said W.rde
Corbyp in his absence and eponeut informed ssd She
rdan Corbyn that he could for what others
might but 10 the notes held by dsponent as the
attorney Of the defendant he might be assured that the
defendant would take steps which would injure his
father his property and depcnent then remarked to
said Corbyn, that he opponent, did not know whether
OF not hucn cousiu was Nsu pieitei' as ~ 'at
Coibyn had volunteered to qualify himself as w'tuess
to appear against the defendant but that could have
effect either upon dsponent the defendant aud de-
ponent says that no proceeding lave been taken TO en-
force payment OF said note although the same is long
overdue and IL remains wholly due unpaid,
thing has been paid thereon and he denies that he
ever etated TO said Sheran Corby that the defendant
could ipure him that he made any threat whatever
to the ssd Sheridan Corbyn said on the subject
OF the sale Sheridan Corby bang witness in this &C
fion than is above set forth
BENJAMIN GALBRAITH.
Sworn before me this 10th cay OF March 1859
.Jo ELLIOTT Commissioner OF Deeds.
Ctr and County of NeiD Fork, ss.-John Townshend,
of the city OF New York makes oath and says That
he present counsel o. the defendant at the taking
Of the examination de bene OF Maurice Stakosch,
and cross the said Strakosch that the exami
nation was cont nued uni after midnight of the l4th Of
November 1883 and that during the said crossexamin
alton the said Maurice StIakosch several times request
ed deponent be brief possible as be desired to
60 home and pack his trunk and prepare for leaving the
city early The following morning and deponent says
that well from the manner and observations OF the
said Maurice Strakosch during said examination as his
knowledge of the character Of the said Maurice Sra
koscb and his knowledge OF the facts and circumstances
of this action he believes the said Srakosch left the
sty OF New York and renamed absent therefrom until
after this OF the trial of this action, for
the purpose of avoiding uird examination the
trial OF the issues in this action and that the pretended
IL ~. ll..Aa al ar,