The New York herald., 1868-12-16
SUPREME cOURT-CHAMBERs.


done in numerous similar instances, still ltgates
the question before the Court Of Appeals. The par
ties in this sought to enforce their rights against
the Comptroller by attachment, claiming that the
decision OF the General Term cannot be appealed
~ . litigous proceeding. Yesterday Judge Cardozo
rendered the following opinion, denying the appica-
nOn:-
think the orders Of the General Term IN these
matters are not renewable by the Court Of Appeals,
according to the decision IN Dodd's case. But the
Counsel for the Corporation believes that there s
su1cient reason to justify his asking the Court OF
Appeals to reconsider that decision. The frequency
importance OF the matter TO the city, justify me-
think, since the only detrment tnat the petitioner
Opportunity which its legal adviser seeks. The mat
ters can speedily be tested by motion to the court at
the January term. to dismiss the appeal the pre-
sent application Should therefore, be denied, with
leave to after the matter has been disposed by
| the Court Of Appeals.
| The Erie Litigation-The Reargument Com
tinued-Another Order TO Show Cause
Judge RmOtt's Argument Concluded.
j Before Judge Cardozo.
August Belmont ana Others Us. The Erie Ratl,ray
| Company ana Others-This case was resumed yes
terday, pursuant to adjournment on Monday last
| Mr. Emott opened by saying that he understood
on Monday that counsel proposed to adduce other
in support Of the two they had quoted against
him on that day.
II
misunderstood them
Mr.. Vanderpoel then said that before the argument
proceeded he desired to make motion As he un-
derstood counsel on the previous day they raised
technical question that the order to show
cause did not contemplate vacation OF the
receivership Of Judge Davies. but SIMPLY q
motion to reargue. He therefore asked that
the original motion be amended to include the
receiver, Henry E. Davies who had appeared and
submitted bref and to make the order to be for
vacation Of the order appointing him receiver.
This he thought would merely correct technical
objection.
Mr.. Emott objected to any correction at this STAGE
II the object was to cure merely technical defect it
was obviously useless. II 1t was matter OF sub
stance and intended to change the object OF the mo-
ton then 1t was manifestly unjust to call on them to
Judge Cardozo said that he did not think 1t would
be right to compel counsel to change the object OF
case in ali It's bearings 81 he would grant new order
to show cause covering Mr.. vanderp0els motion
and would adjourn the hearing to Thursday that
the plaintiffs counsel might consult the bearings Of
Considerable opposition was developed on both
sides to any postponement Of the argument Mr..
Rapallo suggested that it was unnecessary as the
argument to vacate the receivership would be mere
matter Of form after the exhaustive argument on
Mr. vahderpoe suggested that the order be entered
returnable forthwith.
sides till Mr.. Field suggested that this order
tain az RECITAL that paintis waive all further time.
such peremptory order that he wished not to have
any future question about the time Of the return.
ass ng ae9 @ s a0a
such recital should be made as that they waived any
Both sides standing out on the question Of form
the Court took 1t in hand to make On order to show
cause, returnable on Thursday at halfpast nine
M s
time Judge Cardozo stating that his calendar was 80
isi Ss Sour ne could
Judge Emott then resumed his argument. There
had been two authorities cited BY the other side
so .ss ssss 70 B ne ms s f INTO oass sss
court s the Court had
the appeal on the ground that the order was net ap
a
Ea Il oouS recovss % he policy a1s i
Rsw 81. ssnSsd n e n % ss1S 9 e
hsls and an 90 appeal @ nom s!a this
order by the Defendants the Court Of Appeals had
said this order was mot But II did not
Judge InRrahafa,s second order and the second
order was made BY the same Judge who had made
might modify his own orders before appeal taken
Mr. Field suggested-suppose in such e case the
M. E%ost-Dead or incapacitated, cicaiter NOR
MT Field-0r removedG
done to prevent failure OF Justice. Here no such
necessity was presented. The case quoted did not
RaHss encs would ' arise rom the doctrine that uds
ment or order might be amended after appeal An
appeal might be figntfuy taken rom ~ an appeal or
tenabe, might have II 50 altered as TO sweep away
the grounds Of appeal, leaving the appellant with
cur, and the appellate court would be continually
embarrassed with the actions OF the inferior court.
noel iti had nothing to do with the case. He could
speak OF II with the more certainty as he had been
member OF the Court OF Appeals who passed on II.
OF Common Pleas and had been non-suited. He mad
then commenced new suit. and from extra caution
spRhsu moSed SO as to be without PREJUDICE to
the suit and the Court Of Appeals had neld his
caution unnecessary. Counsel aga,n alluded TO the
IL fully supported him In his view that after full
argument there could be no rehearing In a case In
had whole day OF argument; they had disclaimed,
or at least, the Court had dscaimed for them, the
imputation on the Judge Of y undue & haste:
They had not thought 1t wise or necessary TO In
troduce new andavts In reply to the new afildavits
OF the defendants. They did not understand that
the case previously made, and they did not think
they ought to waive as they once had been said to
Judge Csrdoao said the derence between himself
and tnat Judge was that he did not think they had
| anything to waive.
Judge Emott said he did not think they had waived
any right. At any rate they regarded this case AZ
| substantially o motion to rehear, and the views
which he had presented and to which he had substan-
TALLY confined himself were, they thought, conclu-
| sive against this motion.
| Judge Cardozo said that without expressing any
opinion on this case or intmatlng what opinion he
| might have he wished to put q case for the con-
| sderation Of the counsel. suppose an application
were made for provisional remedy, and that he
| granted DUrt6 SUPPOSE subsequently that q
motion were made to discharge vacate this order,
and the granting or refusing the motion, resting en-
trey In my discretion. not appealable hear II and
refuse the motion. Subsequently the party appears
before me and asks renearng on additional sflda-
vits II Is heard, and ! am satisfied that ! was
1 rightng that wrongf Or suppose It Is not 90 COM
pletely matter Of discretion, but that II Ia renewable
/ IN the appellate court but the appellate court
can fnd NO error sulcent to reverse that decision
i but subsequently discover that was wrong. Can
1t be that cannot give relief IN such casef do