New-York tribune., 1868-12-28
THE ERTE UIR

In the Supreme Court Chambers before Judge
Carioyo 900 the Of Belmont and others against the
Erie Railway Company aud others, Saturday wa7 the
day st down Tor the closing, by Mr. d. D. Field u he
h1 ~ the defendants. on the motion 10 ylcate Judge
Sutherland order appointing Judge Davies Receiver frr
the Ere road Before The argument. Mr Eapao. one of
the counsel fur thr plant1 arose and said: uyonr
ceed. / would .iato that ou Tuesday las, obtained
order appointing Referee "a take tho examination of
purpose 20 sunttlng your Honor anh with Nc hope
u"n Nj. nFsu Nt- 'umhuiel tp "pl,l. u''Ilo ~, ~
Referee "Wednesday and on attending before hc lr
We were there met by an order. obtained ia tho
mcauVhic suspeudug an proceedings for The cNauinn
10 procure hr AFFIDAVIT What legal objection % the
animation 81 Mr Owen could GNi,i canrot understand
such au order. h0 having refused to make his AFFIDAVIT
yolnntarlv A. o the dcf,uGant they had no rght 10
interfere Tor This matter purely cr pgre and the
gentlemen might well attempt to restrain me ffOm
drawing any affidavit In my Office Which thought proper
10 submit your honor 10 interfere with this cxaui-
nation. stl thcy have Thought proper 10 procure This
cured this affidavit may be- at liberty to submit dur
ing The argument or before you have made your de
Judge Carlozo aid that motion to vacate the order
Tor the iahug ~ the testimony ot MI owen nc ad h.t
lad tlme Y" prepare loihti ulh, uut u ,''a NJ ~
vacato IL Substantially the following grounds; Ihe
for compelling IN" makIug % ~ uopOsl,uu WIN uic
pary feekiug IL intends 10 make or opposc notion
The aiidayts upon which the order for Mr. pyeh'eN-
uinntlou wa. made shows that Is not wanted FOR any
motion which the plauls design o make but thnt they
III
heard hy ne But for whatever motion 10 Is wanted, II u
absolutely requisite under the statute that the affidavit
nereSsary that tke witness can be compelled to make
H. II cannot be said that an affidavit is necessary,
unless party seeking 10 has right 10 read IT, hnd ol
course when motion Is IN the stage winch the present
further anidayi,s can be read as matter Of
right IL can only be "nccessary." therefore, when
"A case "a disclosed which so warrants NE
In the exercise OF the discretion vested IN ,a iae
We're bonud and had the right to show by aidavits
he or deposition how
affidavit necessary. They should have disclosed
What they expected 10 prove by It so that could
that il was material and whether the facts IL would
cover were not already sufficiently proven aud theY
should have offered some why ihcy did not seek
10 obain IL earlier especially When 1t clear enough
upon Mr. Browns affidavit that Mr.. Dyen must have
refused TO make deposition before the demand.
which was made the basis OF this application, made
upon hm these ut least should have been shown
TO authorize me to say that the affidavit was 40 necessary
for these motions that would be justified at this late
day. after the liberal opportunity have afforded to both
sides FOR the preparation and discussion of thce ihoot
md after have devoted much time to them, listening
already six speeches and when nothing remains but
10 hear the argument of the counsel VINO vac TO close III
throwing open the whole again. because. of course
n the affidavit Of Mr. Owen were allowed; opportunity
be- afforded TO the defendants to meet IT, thns hde
inately procrastnatiug and extending this matter
The plaintiffs not having. when thus called on, shown
MS sde f,T"a OWEN RRoaIs I be be- vacated. wv ''N
Mr. Rapalo-wo shall eventually procure tho AFFIDAVIT
OF Mr. Dyon Notwithstanding the attempt Of my learned
The Court-Mr Diven has right to mako an affidavit
Mr Rapalio-We shall compel It inroimtUiiy
The Conrt-The present disposition of the motion does
not cut you of from any future apphcation
Mr. Rapallo-I am quite aware OF that, and II am
fortunate enough TO obtain the affidavit before your
Honor has decided, think you will be satisfied that ~
ought 10 be received and 1t s not procured nnt altF
your decision. IL afford ground for rehearlng
Mr. David Dudley Field then made the closing argl-
mont In this case Saturday. After reviewing the
general history Of the litigation and defending the prac
ce adopted In this case warranted by precedent ana
reason, he proceeded IVA follows:
So 70 the the S % a q Il: s % s sopsS Se
need Of noas % aH,os sad oPsns Us sas s . s mo-, @ S
present board Directors Amer Tho eocton OF th esrn'
The bond. Issued portion them converted into oei
these transaction, legal nd valid. Illegal and void This the
e.J. upon the true con.tueton of tenth subdivision Of
y Sac TO- corporation formed under this act shay
power non time time 20 borrow such sam' Of money MAJ
and Of their bsuds oi amount so borrowed and
morags their corporate property aud hashs % 20 sssss 70. p
and the directors the company may confer on any ort
booxod Aforesaid the right 4" CONVERT Tue pn
pal due Of owing thereon INTO ."s' o, M s'% ~ u " RaI
under such regulations tho df.eoi may see ~ 70 soP
What true construction Of last clause Of lh, 'n'see Ihs
authority money pot DENIED the authority TO issue oohu.
denied the authority mortgage the whole properly OF
Company the security Of such bonds ae denied ih snhoy
10 borrow demanded BY the stats o the mei Is NOT de-
ned piIinhes daH The authority 20 nalt hs oond eo
reriibk That .aeh conversion eeaeh' g the srl,'s
hsrshois hardly disputed la England the distinction be-
sIpedeney of converting Me Ater ls,o ~. ,'o, -,
generally seAnoseigsd Ths gsnsn ne9,posss ,p o, s S
managers Company ~ increase H. capital as sceums~ne TO
qure question ohnsnss eyoni question mat s pso,'
itley had Had they the potrf ah'"rr A'
| they had. "A. .,.,.
Breauss in any other sense they would be 'npefhuon
their construction by tho Lrgsa'uei
because such has been the p'senesl con W w., s
FH A, to asla Of the woA Language eau HA'p No