New-York tribune., 1868-06-09
THE FERNANDO FOOD LEASES AGAIN


Yesterday when No OF the nonenumerated calendar
was called 1t was The Mayor OF the City OF New-Iork
agt. Fernando Wood and another the other Dehg ING
Controller. Mr.. O'Gorman said that this was an appeal
from order of Judge Cardozo settling the issues OF
Of them In this BY an accident the court ana
the counsel on both sides relieved from tue en-
barrassment which had arisen from strict apphc.to
OF the rules There were In fact two appeals IN tns s
The OF earlier date from an order dsissnB an III
junction which was on the calendar as NO ~ ana wnicn
had been reached and called ana anohe[ On % ite date
which was from the order OF Judge CardozO setting tne
They woId be ate .s obecOn being thus
luckily and happily removed. DIT shea asAou IL 'A'
Mr. oGorman said he had not He would briefly give
the In the last days Of 62 COS resolution had
passed I'm the Common Council authorizing the extension
OF a lease for portion of Mr.. Woods property. This
was Spps1yeG BY yo s nySr se gIt G m Wood In
which he sad that since he had seen IN print no was
convinced that IL fraud against the city with an
accuracy altogether unusual the newspapers OF the city
| had published this letter ,, -.
Department of the city thinking 1t proper to await
action from the other side and thus secure the adyan
| doubt by tho very best OF intentions. but under
| he could not help thinking, very bad advice
| NNr Pullman was then member OF the City Govern
ment In order to prevent such termination adverse
which tr natIon might be thereafter set up adjr
dc0td it had seemed proper z the Law Department TO
obtain Justice between Mr.. Wood and The city, Common
rumor alleged that there fraud IN the pr0cdrement
/ those portions which seemed best approved
and had embodied them in their complaint. II seemed
a selection from and the best representative OF the gen
eral public. The question they bad desired to have
submitted was, " Was the resolution passed In 1865 oh
talned by fraud r. This question was argued before
Judge CaIdozo simultaneously with motion Of the de
PENDANTS for Judgment the peadings The latter mo
ton denied. Judge Cardozos order settled the
Fir Did hs defendant Wood IN or about the month and before the
M S y & Of & sTs W.. ss piG1 @ @ s9 S@s @ zoe No. %
Boards Aldermen and cOonemeu By vote Of the majority Of
sal. Bolr, should pass and dept and ,S ,d NJ M'{o & ioqS M s Is %
va RssoIro That Controller hereby aud
use Of Il. Law department Nos is and nj Sasssast Gr
d P coS sP s % ' or Once q coorsoU Gor1
5000 aud ff oGee Of the Public Administrator s3o esi be
,he said Wood shoad lnd SSu sy or cause 70 ee PEA % @ vote
such resolution be distributed them the sun Of |2
d Va. the resolution Aforesaid passed By said Boards Of
Aldermen Coureen approved By Mayor under or in pur
Mr. o'Gorman resumed Among Judge Cardozos
tifos the respect which he had obtained VAS Ut. w
@ 10 correct MS % oTn & o9SPs tbePsfore S heste
The allegation IN complaints which this issue was
M M @ Il @ Of m % the , . ws Sss ssstag sgas s..t Ss
.i said sa through he action Of he then being
,rl srsupou ass,ou catered into bessea ihs said Wood
then bs Common coun among other eorrup,
-. ,ulaHi entered a'G ETY. them = "a. earnd
Pton' logH Sls s'tss . and i9 ,hs IPeotye Board, Of
Boards snd adopt Isoaoa 70 VT e s9aoa hero1Afer
.ssp hs paTpe[,Is to Be se.ng such M,yo ign .a
shou paid said person
1 . shaad - vote for such fs aoS e % ' BE- a,SaiS
smous ITEM s2l 600 lawful noRey stsies
Here was an allegation that Mr.. Wood agreed with
divers persons then being members Of said Common
Council, and tho following said persons referred, OF
course. % these members of the Common Council with
the Mayor. aud not To the Mayor alone When they were
called 10 Try the question Of whether they had made
agreement with the Mayor alone they answered that
this was not among the allegations OF the
Department the city not go before Jury that
Perhaps the right In equity suit TO have all the
one but II certainly important matter Any other
Judgment would not be satisfactory to the public. IL
men either way would be far satisfactory and final
IN the matter than that OF single judge. with much OF
Judge Cardozo's opinion he heartily concurred
Ib defendant entitled 70 ha9r precisely what # h. ,hI T.q1,sa
S % % s sa1 @ IL. pess and dan f ohtfS the S.
injustice might be done him bossver innocent by being Surprised on
tine presented ard sReS from want Of Roe he mlt be Wholly al
& a SRSi & S's1 saS one a S
I'D .,i ~ 10 &c i.' ,b 70 E E no ~ % b % ,eogp Sm 70 eet bs@ Tbs
is the only just and sensible rule"
with all this he fully concurred, but the allegation of
fraud is very definite and specific IL alleges corrupt
agreement with divers persons then being members Of
Mr. Justice Cardozo-You will much nearer TO the
point by specifying case IN which the Chancellor ever
framed issue where the allegation was that party
committed fraud with divers persons without specify
Ing the particular persons II differs only In degree from
a general allegation offraud with the whole world.
Mr. 0Gorman-lt was ind degree, aud IN great degree
that II differed u the Allegation had 6eoS that tia.
Jones, Smith, &c, who composed the firm Of Jones
smith Co. Would it have been altered If the allegation
were divers persons composing the firm OF Jones, Smith
Coz But II the complaint were wrong in this respect
murrer motion TO make more definite aud certain
The defect not cured by giving an issue which was
Mr. Wood lie had been politically associated with hlm.
What he did desire was that justice should be done
rest Mr. Justice Barnard said that ne had not discussed
the applicability OF the order Mr. Justice Cardozo said
been decided against the appellants by perhaps the most
learned Equity Judge on the bench bench Judge Daly The
at all to the jury Mr ogorman replied that this was
had the aOnc cOue more anG had but mpCed S % SeT e
an issue which did not arise on the peadlngs
beside the one sent TO jury IT. on the trial OF those
other issues IL shond appear that other questions Of facts
oGorman urged that Il would very mschieyous 10 de
eide that the framing OF issues not appeaable Then
might be framed removing the Whole kernel Of the case
Such order was appealable as being order In sneet
might be an adjudication that It was an issue IN the
action Mr. Shea for the defendant said that the issue
framed was tho only one which on the peadings could
be framed The plaintiff, !, asked & the Court to submit an
fraud the result OF facts, and not the facts
themselves As well might you indct for crime
was committed. You must designate the exact onense
and its circumstances.
Shea on the question Of appealability.
Mr. Shea resumed. The order appealed from was inter
lOcutOry not involving the merits nor affecting substan
ta right The nature and Office Of special findings by
jury on issues settled by the Judge before whom the
cause has been inaugurated In equity, peculiar 10
cases Of strictly equitable cognilanee The object
Of the Judge IN directing an issue-whether done
on his own motion that Of pnrty-s TO sat
isty hbnseJ Of What is the truth OF the ease.
The order Is strictly discreonal II IL manlfesty IN
tended and Of very necessity 10 remain subject 10 the
direction and 20 be under the supervision OF the Judge
who orders the Issues who always retains his cognzanee
OF the whole cause, until fual decree 10 was on this
principle that IL has been frequently held thar an app
cation to postpone should he made 20 the judge who Ill
Tected the issues cannot be tried by TWO hue
pendent tribunals at the same time QUO may be
auxiliary o. the other; but that which " OF prl-
mary jurisdiction must have the general control.
Hence the order is appealable Judge Emm0tt said