The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-29


tnat as your petitioners are informed and believe
while the argument OF said motion for a receiver
Of between eight and nine O'Clock in the evening O.
said 28d Of November 1885, the order in this action
made that as your petitioners are informed and be
leve, the said Jay Gould and his oonfederates pro
caren the sad Jay Could to be 50 appo1rdeo
receiver herein. In fraud OF the SAID orae,
OF Injunction OF the Supreme Court ano
m laad Of your pettl0ners said espn
and by practising deception upon this court or one
ofthe Judges thereof to the true motives and pur-
pointed such receiver; and your petitioners charge
mat the said proceedings in this cause were collu.
other stockholders OF said company Of their RENE.
dies against Jay Gould and his c0nfederaes and
to defeat the erect OF such motion In the Supreme
Court, and were . continuation OF the fraudulent
| scheme OF said Jay Gould and his confederates
u as s control % The snS
perry Of said company for their own unlawful pur-
poses.
informed and believe, the said order In this action
appointing Jay Gould receiver obtained as your
petitioners are informed and believed, ut about the
close OF the hearing Of the argument In the Supreme
| Court, and after the Judge hearing said argument
| motion should he granted; thai one Of the Counsel
who had appeared In said argument in behalf of the
defendants, and urged delay thereof appeared
Tor the Erie Railway Company on the application in
this cause and signed written waiver OF notice OF
motion for an injunction and receiver; and your pc
ttoners pray leave to refer to the bill OF complaint
stipulation and proceedings and papers on file in
TINS cause In support OF their allegations In this be-
And your petitioners further show that since the
appointments OF said Henry Il. Davies as receiver
the defendant Jay Gould and his confederates have
by various contrtvances and devices sought to pre-
vent his obtaining possession OF the property OF
which he has been appointed receiver, and to retain
SAID Jay Gould In possession thereof that they have
obtained parte orders staying proceedings some OF
which have been set aside on hearing, and the
aside as s 40 20
Se neI eevees your an are informed and
OF the Erie Railway Company against himself
and Henry Z. Davies setting forth the appointment
OF said Jay Gould In this court, and an parte In
junction order has been procured in said action by
said Jay Gould from OF the justices Of the Su-
preme Court OF the State or New York restraining
both OF said receivers from acting until their con-
nictng claims to the reccivership can be- adju0ged;
but the said Jay Gould beng already and having
been In control and possession OF the funds IN dis
pute the design and eject or said injunction Is
retain control or such fund for the fraudulent pur-
poses nerelnbefOre alleged.
And your petitioners respectfully submit to this
honorable court that the said Jay Gould 10 hot
proper party to be appointed receiver OF said money!
that he is stock broker member OF the firm OF
smith, Could Martin 4 Co., stock brokers, who are
engaged III very extensive stock spcculations, OF
winch nrm Henry N. Smith, named IN the bill of
complaint in this cause, Is also member; that the
security the sad Jay Could has given receiver is
Inadequate, lie not being directed by the order TO
keep tue iund on deposit in any trust company sub
Ject To the order OF this Court and that his appoint
lnent as such receiver, pending the trial Of the
charges OF misconduct made against MIN and
after his attempt 10 misapply the moneys of
SAID company to the purpose OF buying stock under
color or the order made In the Mcintosh suit, rs
herelnbeiore set forth, is especially improper, and
none Of said matters appear on tho papers present
TO the Judge WHO made such appointments And
your petitioners have reason TO fear, and do fear
ina. II said order appointing him receiver is allowed
TO stand he will use sad order OF this Court TO pro-
tect and shelter him in the commission and con-
tiHuance Of the very frauds with which he and his
confederates are charged And your petitioners fur
ther show that they have just been informed and be-
iieye that Henry II. Nnclpey the complainant in this
action. was recently clerk or bookkeeper In the
employ OF FISK, be,den IL Co.. q irm Of stock
brokers of which James Fisk, Jr., zone Of
the directors OF said company, who Is in
your petitioners said complaint charged to be act
ing In combination with said Jay Could was MEM
Der, ana your petitioners believe That If said Wheip
ley holds any stock OF tie Erie Railway Company 1t
has been caused 20 be put III his name by SAID Fisk
and Gould, one OF Inem for the purposes or this
action and to and them in their frauds.
Your petitioners, therefore, pray that this court
may make such order in the premises shall be
proper for the protection OF the said und, ana for
said. and Tor the securing OF said moneys and that
your petitioners may be allowed to intervene III this
action and may have such further other relief as
this honorable court may deem equitable.
And your petitioners, as IN duty hound, will ever
Dated Ngw YORK, November n, 1888
| Subscribed and sworn 10 before me this 2,th day
OF November. lsds-JAAEs BETS MErcALF, uuhed
| States Commissioner, Southern District New Nork.
CHARLES A. RAPALLo, / Solicitors and Counsel
SAMUEL L. NJ BARLOW for petitioners.
WHO Is wIELpLEYY
! The aifidavit OF George w. Mark was also submit
ted this notion setting forth that deponent is
| clerk IN the employ OF Messrs. Rapalo a Spencer
said trim counsel In tue Ere lltgatlons OF
last spring, and that Jay Could, James FISK,
Jr and others were defendants In said proceedings;
that an injunction issued In said proceedings
was violated and that proceedings were had against
certain parties Tor contempt IN said violation.
and that among the parties proceeded against
were James Fisk, Jr., and Jay Gould; that In tie
prosecution Of said proceedings witnesses were eX-
anlned and books produced upon such exam
| nations; that this deponent knows the palntln
Mheipley, aud that saiu hepley was at that time
| clerk in the employ OF the firm OF Fisk, Beden d
Co., and that deponent served upon said Nheipey q
subpoena ducestecum, Issued In said proceedings,
requiring him 10 produce the books OF said firm OF
FISK, Beden Co. The proceedings closed by the
| granting Of the following
ORDER JUDGE NELSON.
At stated term OF the Cwcuit court OF the United
States for the Southern district OF New 1ora, Second
Circuit held al the city OF New lork the 18th day
| oil November, 1858, present samuel Nelson Judge
| Henry u. WhetpteV ~. The Erie Rdtt,odp CONF
pa,sy.-on the petition OF August Belmont and Err
nest b. Lucke dated November 81 1865, aad the papers
thereto attached and therein referred 10, and the
petition OF Henry Il. Davies receiver, dated Noyem-
Der 81 1868, and the papers therein referred to- and
on the bill oi complaint stipulation and other papers
aud proceedings IN tins cause, and on motion or u.
A. Rapallo and samuel l.. NJ. Barlow solicitors for
August Belmont and Ernest Il. Lucke, and Noah
Davis. solicitor for Henry L. Davies, receiver.
Let the plaintiff and defendants IN this action and
Jay Gould, the receiver appointed herein, show
cause before Circuit Court OF the United states fol
the second Circuit and Southern district OF New
York, to be held at the city OF New York on tho 30t
day OF November next, mt eleven O'Clock a. NJ, why
the said several petitions should not be granted and
why such order should not be made In the premises
as shall he Just and proper. And IL IL further or
dered that copy OF this order be served on the at
torneys for the plaintif and Tor the Erie Railway
Company In this suit and upon the said Jay Gould
and that the service on the latter be made either
pc sonally or by leaving tile same ut his place oil