The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-18

work would accrue to the railroad company and re-
suit to the benent OF Its stockholders. He further
charged that the organization OF the Credit Mobier
was collusive, and that the arrangements between
the two corporations were fraudulent and made for
granted enjoining the completion of any existing or
the making OF further contracts and restraining
the payment OF bonds to the Credit Mober by the
railroad company. An accounting was also prayed
for.
Yesterday the case came before this court on mo-
ton by the defendant the railroad company, for the
removal OF the cause to the Unlted States Courts,
under the act or Congress OF July last in reference
the Union Pacific Railroad Company.
IL was opposed on the ground, substantially, that
the course OF action implicated both defendants con-
Jointly in q series OF transactions which prevented
plant II was further claimed that in any the
other defendant was not entitled to removal and
both must stand together.
Decision reserved.
New AHidnvit by MIR. Belmont-Answer OF
Mr.. Diven-Arsuments Of MIR. vanderpoel
and Mr.. Rnpnllo-The Argument to Proceed
To-day.
August belmont ana another Us. The Erie Rdil,cdl
Company and Ouers.-The argument in this case was
resumed yesterday after the conclusion of the regular
calendar. On Tuesday new order was made to show
cause why Judge Sutherand's order should not be
vacated and set aside. Mr.. vanderpoel opened the
proceedings yesterday by reading the order to show
cause and short affidavit that the papers in the
suits broughr by the Erie Railway Company against
Vanderbilt. Work, Schell and Drew and the papers
In The Peoples suit, with Judge Balcoms order and
opinion, had been served on the receiver and the
plaintiffs. These matters were all well known to the
otner SIDE ana Were not properly new matter
present MR. mcfarland said they had sent for 1t,
but 1t had been delayed) and also the answer OF
Mr.. Alexander 5. Owen, which had been only just
put in.
Mr.. Divens answer sets forth that the certificates
OF stock signed by him last spring were signed by
not to be issued in conversion OF bonds, and that
that use by the treasurer was without his knowledge
or ASSENT that his duties as vice president In the man
agement Of the traffic business were very onerons,
and that he did not take an active part IN the nan.
cla management and knew nothing OF the issue OF
any but the first 5000, 900 Of convertible bonds
Mr.. Vanderpoel then commenced his argument.
ae DID not see that MT Owens answer ade s any
was the practice question OF whether such reargu-
ment was proper. He had always supposed that the
REORGANIZATION OF interlocutory orders during the
tendency OF suits was common and ordinary prac-
uce. IL was common practice to have motion
denied with leave to renew. 1t had been equally
common when the parties subsequently discovered
new evidence or were surprised to move on such
new facts for leave to the court to renew the motion,
and this was commonly granted and not necessarily
before the same judge. Mr. Vanderpoel read several
authorities to show that such leave was granted II
erroneous and claimed that they came within these
rulings. 1t was alleged by the defendants that all
.ne new acss IN TINS case were existing ana were
motion before Judge Sutherland. One Of the cases
cited in Smith and spaglding held that Judge
might permit a renewal OF motion on same facts.
Mr.. Macfarland-That is proposition we have
never denied.
Mr.. Vanderpoel-we certainly understood Mr..
would only be necessary to briefly refer to the
case. Certainly the quoting OF the Livingston case
could have been only for the purpose OF denying
that proposition and asserting that an order could
be only reviewed by appeal. In the matter of Lv
not provisional order. There seemed to have been
some Idea floating through counsel's mind that All
interlocntory receverslp differed from other pro.
foundation. One rule applied to provisional
remedies. The rule laid down in Livingstone
case was in regard to final determination OF
the proceeding. lie then cited various cases to
show that the doctrine Of ddjdicatd did APP
ply TO interlocutory orders, and called attention 10
the fact that only two OF the OBSERVATION-DISCLOSURES and
Lane-had been served before the argument before
Judge Sutherland. Gould 1t be heard that the
other seventeen gentlemen could be reInoved-fcr
that was the practical edect-and not be allowed to
ask to be heard here because the two had appealed
Judge CardoZo said that he need not spend further
time on that point. as he was satisfied that the fact
OF an appeal to the General Term did not take away
the power OF the court.
MI. mcfarland here said that to meet certain in
situations that had been made they desired to read
the following af1davit:-
a e e E " d az. ns
that the same commenced by him and his
Il. e: %
THIS then owning soo shares Of the stock Of The said COM
without knowledge of or suspicion At the time Of such
the complain, in this action That said action was and
IN entire good faith and solely for the 2,
that other had or has interest the
was not Commenced By the plaintiffs nor Is the same prose
cuied the Interest Of FOR the bench, Of in a.
That neither deponeni his said coplant Is has At
shs saek 81 The sid co1any ercsn, With rsfrrene 70
sad set os in :ad Compliant
short
specuaons transactions touching the same, except
sworn, &c. AUGUST BELMONT.
Mr.. yanderpoel resumed his argument to show
that the course OF the argument had surprised Them
The cases stood on the Chambers calendar as 2l3
and 2li. n the calendar had been called down 70
l3s In the ordinary course these cases would not
have been reached for some days. He did not deny
the power Of the Court over its calendar but az far
have cases called In regular order. II THESE cases
to be called up out OF their regular order then at
least they should nave had notice Of the intent They
had come In here with their afidavlts unprepared.
Mr.. yanderp2el read from the stenographc minutes
20 show the way In which they had been forced on to
10 show that large number Of the matters which
denied in his completed affidavit were, "a IT
stood before Judge sutherland, undenied. lie called
attention 10 other facts which appeared now which
did not appear before Judge sutherland, aud among
the rest that they had before the Court the fact
that Judge Davies. however estrnable as man and
lawyer, was untitled by his connection last spring
counsel with those hostile to the company for the
rece,sership OF this company.
discussion OF the merits to show to his Honor that
n he had the power 10 rehear there meritori-
Gus reason TO disturb Judge Sutherlands order.
Mr.. Rapallo then discussed at some length the ufs-
dctiona question raised the statute rs to the re-
moyal Of directors. IL was not limitation on the
old powers Of the Court OF Chancery to release and
protect stockholders, but an extension OF that power
10 give other persons, not before entitled to bring
such suits, the right 70 bring them. lt was general
~ understood that this act was passed In conse-
quence OF a decision OF Chancellor Kent, In Attor-
ney General W. The Bank OF utican the Attorney
General could not proceed In equity, but must pro.
ceed NJ common law. The charter was the contract
between the stockholders and directors, under which
they acquired rights OF property which the courts
may DE called upon TO protect. Under the old
fdea oi Corporations AZ partaking OF sovereign
power different view had been taken of the law,
but that IDEA clearly lay at the root OF all the restrc
tons In the powers OF relief which the courts could
give. Now, when corporations had become, In fact,
convenient partnerships this idea was swept away
and the restrictions must fail with II. There was
nothing contrary 10 that view In Chanchellor Kents
decision which arns the right OF the court to con-
troll the directors AZ trustees OF the STOCKHOLM
ers. The Chancellor denied the Court any