The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-19
THE GREAT OPERA LIBEL SUIT.
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The $4,000 Verdict to be Reconsidered.
ORDER FOR A new TRIAL SUSTAINED.
Superior Court-GeneraI Term.


Vs. Bennett in which the Superior Court has heretofore
on bill of exceptions, reversed the judgment obtained
against the defendant ordered trial to be had
motion made the 10th inst, by plaintiff Is
sell vacae that order and to allow additional evden
necessary to make up his case to be supplied The re
versa of the judgment and the ordering of now trial
put by the Court the ground that the deposition
of one Strakosch which had been read the trial de
bene ese admitted without satisfactory proof that
said Srakosch had continued absent from the State and
that his cannot be compelled by the ordinary
process of law. Defendants counsel had the trial.
excepted to the decision of the Judge allowing it TO be
read.
The Court having on this ground reversed the udg-
ment, the plaintiffs counsel made the motion in qses
on 10 have that order vacated and to have the
sary supplemental evidence, which should have been
given the trial. taken at the bar of the court,
before referee to be appointed That motion fully
discussed and argued by counsel both Sides and to-
day the Judgment OF the Court pronounced by
Chief Justice Oakley and Judge Bosworth the rest of
the Bench concurring
JUDGE oAKLEY's OPINION.
On last Saturday motion made and argued in
the of Fry against Bennett Fry, is well known,
sued Bennett for series of ibes his character and
conduct as the manager of opera. Trial had on
that suit and it resulted in verdict against defendant
In the course of that trial, the deposition of one
strakosch offered in evidence He had
been examined by virtue of order made
for that purpose His deposition offered to
be read, and It received under the general obec
on the part of defendants counsel that the absence
of the party not satisfactorily proved. On tbe
gume Of the exception taken to the ruling
I'LL of exceptions all the evoence in the matter
brought before the court and argued The court order
ed trial solely the ground of the improper ad
mission Of that deposition. Various other questions OF
importance and magnitude involved in tue case
respect to Of which the Judges who decided the
expressed opinion but, as understand it, tine
reversal Of the Judgment and the ordering OF new
trial rested on no other ground than ttat just re-
ferred to- Alter this argument and after the decision
OF the case, order for q new trial was entered.
The plaintiff proposes to produce testimony at the
bar Of the Court in order to remedy the defect in the
evidence which existed at the trial in relation to the
absence Of Mr. strakosch He proposes to produce wit
and have them examined, and he has presented
the adavits of these witnesses, going to establish very
clearly that this man was in fact absent at the time
OF the trial and which evidence, IL 1t had been pro-
duced on the trial, would appear sufficient to have
authorized the introduction Of the deposition.
In the discussion which took place last Saturday
this matter, counsel for psintif admitted per-
haps little irregularly-fo into argument
to the Of the decision of the Court ad
mittng this deposition. The Court heard him,
as much perhaps out of Difference to counsel
into similar discussion intending to show
that the Judges who heard the the bill of
to law In disposng Of this matter now take occasion
to say that the Judges who made that decision ani
ordered new trial, and to whom these suggestions
made to alter the views which they
then entertained in relation to this matter The ques
ton which counsel in his argument presented, I'D not
naturally positively itself with the motion
before the Stll however, the counsel entered
into argument the subject it is proper to say here
that the Judges who decided have not those sug
gestons discovered any to doubt the correctness
Of the conclusion at which they arrived in that case.
Now, in respect ito the points on which this
we cannot see any just ground on which we
can grant this motion. II has, no doubt often
happened-I know 1t myself in my own experience,
and know il as matter of common expediency-that
when, the trial OF the there has been omi
sion Of eyiit nee which afterwards examination
OF the at bar is discovered to be MATERIAL IL is
within the discretion OF the Court to permit such ev
dence 10 be supplied. 1t Is cone for nstsnce in the
Of judgment record, of deed, Of any docu
ments to which there can be dispute, and which
lead TO conflict OF testimony. Courts have occa
siopslly, when such matters have come before
them sent case back for a new trial; but that Il
seldom done when the purpose Is merely TO intro
duce document which could, in no possible way
have influence upon the minds Of the jury. The at
tempt is 10 carry this practice further II is at
tempted to have application OF this kind made to the
court after judgment in the After the case IL de-
cided and trial ordered it is attempted to have
introduced evidence point which might be the sub
ject of conflicting testimony 1hns witnesses whom the
plaintiff counsel proposes to produce before the court
and examine might for all we know, be conradicted
and successfully contradicsed by others Al all events
admission OF such evidence would open the door for
a trial matters OF fact which not sufficiently
proved at the trial; and this would be clearly inconve
nient snd not only that, but highly improper. We
quite of opinion, therefore, that cannot
tend the practice this subject beyond the cases
In which It has been hitherto adopted that is,
is brought before the Court, application is
made supply defect in the evidence-orma merely
and necessary matter OF record 10 sustain the
party who obtained the verdict This Is allowed 10 be
done when it and mex pedient TO put the
parties to the expense OF new trial. and where the
proposed supplementary evidence is merely a paper
which cannot be disputed In this practice there IL
thing unsafe or inconvenent but 1t easy to that
were a gO n
quries in relation TO evidence which in its very nature
is conference.-the where opposite witnesses might be
called and where IL would be for the Court TO weigh the
credit of the witnetsea, such practice would lead TO
great irreguarity. On that ground, therefore is
quite cksr that this motion cannot be granted. II Ia
qute clear, also, that such motion never has been
granted after judgment being given. The application
is in fact to open judgment which has been entered
10 set aside the order for trial 10 anow additional
facts TO be proved and 10 bring the matter de
In the judgment Of the Court that soud be the effect Of
granting this motion. Now, II Ia much better that the
parties be put TO the Inconvenience Of trial. in
which this defective proof in regard to Srakosch's de-
position may be remsded On the whole, therefore, the
motion must be denied The reasons for this decision
are given more extensively in detail in the written
opinion which be resorted to by parties interested
in IL.
JUDGE BosvoRrH's OPINION.
Judge BoswoRTB, After referring to the facts
nected with the motion cont nued We have no doubt
that the deposition Of strskosch improperly admit
ted evidence and that trial should have been
granted for that cause. II Is contended by the
plaintiff that eoncedng this TO be yet a. the evil
dence which i,s sdmissibity depends is by statute
TO addressed 10 the court only and is not TO be and
Ia not considered by the jury in forming their verdict
and II l. made apparent by satisfactory proof,
be made so, that strskosch continuously alb
sent from the State until after the trial, the court
should allow the fact 10 be proved and that II
conclusive proof given the order granting trial
should be vacated, and argument ordered, and the
be amended 10 present its face satisfactory
proof of the fact Of such absence.
The plaintiff relies mainly that ca-a of cases Ia
which party who has obtained verdict on de'e tive
insufficient proof Of some fact the existence Of which
depended record or documentary evidence has bean
allowed 10 supply the defect the argument Of mo.
ton for a trial, BY producing properly exemp
copy Of the record document. He cited Sand.
126 wend., sol lSJ. r., 5l7 -. C., l25 2aet.
calf 81.