The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-24

Q good complaint 1t was the easiest thing IN the
woriu 10, nv; belmont TO put IN demafrcr ~ as
NO; I'VE" had come into court with good purposes
and with honest hands.
Mr.. Burrill then proceeded 10 recitc or summarize
the allegations OF the complaint and argued thaI
the criticism of .'ihe other siden amounted TO
nothing ON the question whether plaintlns
stock stood IN his own name on the transfer
books. There was not man present who knew
whether his stock stood IN his own name on the
books or not and claimed that not ony was oh BEL
nOnts answer untrue, but the piaintin was abso
1utely entitled to his injunction.
AT this stage ideas and matters became generally
show OF 4 big legal tight, and Mr.. Porter asked the
Court to grant = recess or one hour objected 10 ny
the other side and not allowed.
Mr.. Burr then read the petition OF Jay Gould,
upon which he was appointed receiver, and con-
tinued his argument repeating In the course OF Il
nearly all the propositions then or previously ad-
vanced three or four times and maintaining among
other points that the retiring OF the 100000 shares
was solely for the benefit Of the stockholders.
Judge Sutherland wanted to know where a cor
poration 0btained its authority to buy up Its own
stock They were created for the purpose OF issu.
ing stock IN the process OF their business. They had
no right TO buy any; that was principle which
every child who had ever heard Of Blackstone well
Mr.. Burrln answered the question ~ by asking
what horn Of the dilemma would be seized hold OF
II It were determined that this stock was Illegally
issued. They would have to distinguish the
shares illegally issued from those properly issued
before they could be recalled.
Judge Suiherand-And this order authorizes Jay
Gould TO buy this stock and to the FUNDS OF the
company for that purposes but does that order tell
him how to determine what stock Is good and what
is bad
Mr.. Burrill-of course not sir.
Judge Sutheriand-Weli, what is to become or this
money with which the stock Is to be bouglts
Mr. Burrl--Well, we Will see.
Judge Sutherland-Is it the company's loss or not?
Mr.. Burrill0f course II is not the company's loss.
Judge Sutherland-Well, the parties who hold this
worthless stock can recover the price paid Tor IL GER
tainly.
Mr. BurrIll-If you cannot separate the illegal from
Ia lpna1 nstr ma GiiuFA hsn n an
good
After some further argument on these questions,
in which it was whispered that AR. Burr and his
associates We're talking against tme' TO secure
some other point.
Judge Sutherland suggested that Mr. Burr had
better pass TO the question OF the power TO issue this
order as chat was very Important consideration,
for the reason that II the order was issued Illegally
II h5 brother Barnard made an order when he had
no right To ISSUE 1t was absolutely void 90 fnitio.
Mr. Bnri1i wished to know If the position assumed
was that one Judge had 40 power 70 make an order
OF this description unless he was sitting in particn-
lar place, and that place the Special Term room OF
the Supreme Court.
Judge az any place, and not holding court, whether
&C his house, III the street, or anywhere had the
power to make an order appointing receiver.
This question received avery pr0miscuous hand
ling, Mr.. Burrl maintaining that as question of alb
stract power, outside OF NIL questions OF practice
regularity, or courtesy such All order was Just as
good ~ one granted in tins room.
Mr.. Pierrepont then proceeded TO make the closing
argument on the motion, and prefaced his discourse
with the mint that 'words would not cover up TINS
case.o 1t was plain simple matter, and he cared
nothing about the averment OF the other side that
take their complaint and orders and show that they
were absolutely VOID. The affidavit OF Fisk
set out substantially that Belmont and others
were about TO bring suit against the Erie Railway
Company and its directors, and that they found Il
out. They found out that stockhoider was To pro-
coed against the directors. The plaintiff Belmont
was Interested III the bringing Of his suit to the ex
At the close OF Mr. pierrepont's address which was
very scrutIniZnH. brpf ueSIllfOrV
and the Court ultimately granted an order setting
aside ana vacatine the injunction In the Mcintosh
case, together with the appointment OF Jay ouid
Us trustee, and the order amendatory thereof, au-
tnorizing him 10 purchase for the company, at any
price below par 100000 shares OF the stock Of the
Erie Railway Company.
The Belmont Case.
august Belmont ana Ernest u. L,tcke rs. The Erie
RoVroad Company, james Fisk, Jr., jay could
Frederick A. Lane and Others.-After considerable
discussion as 10 whether this case should be then
heard or not,
Judge Sutherland decided that il must be heard
saying that he not going to leave this property
without anybody 10 take care OF IT, He believed
that should be appointed to assume con-
troll and must come to that conclusion from the
papers on both sides, the Mcintosh party them
selves having sought the appointment OF receiver,
aud having had Jay Could appointed to and accept
Ing the position under the order in that case.
Mr.. Burrll then objected to their being forced on
10 argae it, stating that he had had time for the
settlement Of any papers and that 1t would be unjust
OF the Judge to make an order In the case without
giving them q hearing.
Judge Sutherland said he was willing to hear Mr..
Burrili.
NJ. Burrin observed that II ne were heard he
wanted 10 be heard upon the papers.
Mr.. Porter asked II the Court would not allow them
Aatc Iatfo svrfa "a
drawing.
Mr.. RapalIo replied that they had had six days
notice OF motion. and this was the use they made Of
t. coming into court now and complaining that they
had not had time.
Several OF the counsel on behalf OF the defendants
simultaneously objected to any hearing being had,
and stated that they were without papers ana that 1t
would be unjust TO compel them 10 proceed.
Judge -utherland thought that IN the face OF the
facts admitted IN the complaint just argued and
forth therein aud OF the fact that Jay Gould himself
the President OF the Erie Railway Company. had by
petition sought the appointment OF receiver and
ina; he himself had accepted that ofice In the Nc
lntosh suit, thai the appointment OF receiver
necessary, aud he could not grant any postponemcnt
without "a hearing Of tue motion.
Sir. Pierrepont called the attention OF the Court 10
the violation Of an Injunction last spring by which
argc amount OF the Erie Railway Companys prop
crty carried on to New Jersey, and stated that
if Luat receiver were not now appointed there was
nothing eAt an Injunction 10 be violated Ia order
that tue same course might be again adopted.
Judge sutherland, I'm reply 10 Mr.. Burrili, stated
that TREY hal given the control OF this company 90
several men, and IN view or that aud the allie.
CATION the other side he did not know how 1t
possible lor hln reasonably 10 AVOID bringing the
motion on. IN order 10 settle the question whether
the appointment OF receiver was necessary. lie
did not thiuk that theg could produce aiidayts Sci
tn, forth facts which could materially alter the
necessity Tor sucn action developed by the papers
and disclosures m the case just argued.
NJ. Porter suggested thai those papers alleged facts
which he wished 10 deny; but he aud his associates
would have been better prepared 70 proceed with
the motion had they been willing To work on sun
day. They presumed however, that they would have
been allowed reasonable time TO answer. AZ IL was
they had laborcd during the whole OF Saturday
night
Judge sutherland asked II there was the renoieat
possibility Oh their being able TO show that there had
not been an Illegal Issue ~ stocky
Mr.. Porter replied that he thought there was
Judge sutherland asked how, II that were the
aae fs new pusttion poud he al AL consistent with