New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-09-15

and judgments affecting the property.
During the reading Of the afiidavits Mr. BuNeed
was present and seated at the couusels table %
posi,e Mr.. Whiting. At ose time Mr. Busted was
engaged in conversation with gentleman seated near
him. and in his remarks he made some auson TO Mr..
Whiting sufficiently loud for that gentleman to hear
and which, it would from their effect, must have
been very offensive. Mr.. Whiting said:
i ak the Court to protect me from this man Mr..
Busteed) who ats opposite me. He is making remarks
intended for my hearing and which i will not bear.
Anywhere else l can project myself, but here sm
compelled to ak the protection of the Cour..."
MIR. Busteed-I have said nothing to the individual
who has just addressed the Court. cannot be held
responsible for the fac. if he has long ears.
Judge Roosevelt-I have heard nothing, but trust
the gentlemen will for the Courts sake avoid using
any language offensive to each other. If cannot be
avoided, the gentlemen had better further from
each other.
Mr.. Whitirg-The remarks are not intended for the
Court, but are designed if possible, to annoy me.
Mr.. Busteed-I believe there is no motion before
the Court
Judge Roosevel.-There is none necessary but
hope the gentlemen will act upon the Courts sugges-
ton.
between the counsel appearing for Mr.. Lowber and
the Counsel to the Corporation and Mr.. Whiting.
Judge Roosevelt refer entirely to the Counsel to
the Corporation and Mr.. Whiting.
Mr.. Busteed-I wouldn't think Of opening my
mouth to the man who sits opposite meas | could
not bear the contact.
When the reading Of the afidavits had been con.
Guided, Mr.. Whiting proceeded to open the case for
tatsn ,ok
briefly amplifed. He held TO the following points:
First: This application is to open Judgment, and ad-
dresses jt'ef to the eqoitsbe powers of the Court
Third Il will always be granted motion, in furherance Of
insdveenee surprise excusabe neglect sec. l7 and
e ss be 81 S Wesn the parties. and third
persons may be affected by the Judgment cannot stand
such judgment to the innocent third the
Court becomes party to the fraud intended to be effected by
such Judgment
FUt6: ANY person, euie has the right land
his duty inform the Court Of any or cousye
and when Court informed it will not permit the power
of the Court to be used to aid in the c9nsummation
against the will Of the parties for it cannot permit It,
II be X. d . in s OBJ
Seten The Corporation are but the formal parties The
to the property of the city, but trustees In this regard
dvidusl, who may do act in contravenon of trust
Eighth The act Of the pretended purchase Is patton
opowernone such conferred upon them II were not
il fragrant abuse OF power.
department the City Government the Department Of
Finance although not member Of the cooperative body yet
whose duty it is to guard that Department and who is
payer nte sted the Judgment has right to be heard
on 1 hs No oh Rs sead the Depart
an OBJECTION to The right Of the Controller to make this motion
As he into Court and makes the objection then we say
neglect Of duty tina. the Court cannot it,
a Ss Sss wn and ] an h ss
trust and is bound to perform it With fidelity
supefntend the the CITY, and manage the
same in the manner required by the Charter" 80
land. to Be
deed before the execution or acceptance of it.
q He could not be directed By the Common Council to make
IL was the duty of the Controller to refuse to make the
purchase especially there funds to for it. and
The Corporation had no power to purchase it.
nance IL he had made the purchase 80 ~
The land worth half the and the title had
Teen The neglect of the Counsel has been that
It amounts to fraud in law
In not demunng the complaint. upon its face the
plaintiff could not enforce specific performance
l. The Corporation never made a contract with Lowber.
q That the duty wa al executive one, and was never per
That Cooperation had to order the purchase
was not worth oneha the sum to be paid for it, and the over
price in itself evidence Of fraud.
His consent adjust the $50 than they
taxed paying the referee when there but
meeting ,h. Controller intended 70 spoe, and
his concealment OF the entry tne Judgment rom va.
His subsequent refusal 70 DO anythins OF pemtns tne
Controller IN ms name toward al enoit 70 open he
The TO have map annexed to the deed which he
approved. 800
y. In not reporting 70 tne tontioier az ~ lne tte.
TO- His not reporting the membranes BY way OF mortgage
aud judgments.
H. The failure of title wothds Of the land covered by
the deed
II His knowledge Of all these facts 10 fully proved by the
psps the evidence OF his wfu de-
reelection OF dsy is his appearance here to aid owber aud to
defeat us.
Fourteenth These outward acts show the secret inten-
distinctly and unmakaby show collision between the
n, 90 Tow .t,np,u nd The pla