New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-12-16
THE ERIE VAR
CONTINUATION OF THE ARGUMENT.

CONTINUATION OF THE ARGUMENT.
The argument in the suit of Belmont against
The Erie Railway Company and others was resumed
yesterday.
Judge EmOtt understood that the other side intended
to furnish further authorities in support OF the Au
dubon
Mr.. Field said that was mistake.
Mr.. VandcrpOel said that before the argument pro
ceeded. he understood technical objection had been
taken they proposed TO amend the order to show
Mr. Emott objected that Il the amendment was merely
technical there need Of IT, and II NOT then It was
Judge CardOZo did not that he could compel the
parties change their line. but he would, n II de
retnruable two avs hence. why this motion should
not be granted aud would direct both motions to be
MIR RapalIo suggested that such q motion
saiy. the Judge should decide on this question. the
decision yacang the order would follow as matter
kter some further discussion the Court directed that
an order Ice entered returabe days hence and IN
the meantime suspended the argument unless the other
At last it arranged that Judge Emotis argument
should be concluded, and then the argument he ad-
iOurned 70 Thursday, at II o. N.
been some authorities cited by the defendants counsel
authorities % show that there might be eheang after
"A decision and appeal lie had examined those cases,
and in one he understood, nothing was decided ah
the Court Of Appeals had dismissed the appeal being
from nOnappcalabe order. There was nothing IN that
ease 10 show that Judge Ingraham reheard that ca'e
after appeal and they had never denied that Judge
might modify his orders before appeal
Mr.. Feld-SuppOse the Judge were dead
Judge TmOtt-Mauy things might be dOue 20 prevent n
failure OF Justice But here there such necessity
But the quoted does not prove at all that when
appeal was taken there could be a rehearng The great
est Inconvenience might arise 10 suitors from such ruiz
az they claimed An appeal might be changed IN sub
The case Of Audubon, cited by Mr. yandeIpoe had
nothing 10 do with the case There haa been suit
and no appeal from IT, The plaintiff had brought
SUIT and Of caution had gone back 10 the Court in the
old suit and procured amendment Of the Judgment
Court Of Appeals had said In that that that eau
tion unnecessary Counsel again alluded 70 the
ported Inn in his view that after fu argument there
could be reheariug in case. In this case they had
day Of aTs1meHt they had disclamed or at least. the
Court had dsclamed for them the imputaon Oh the
Judge OF undue haste.
riley had thought 1t wise necessary to introduce
new aldayis IN reply 10 iIe new aihd9Mts OF nc de-
varied in any substantial way from the case previously
made and they ala not tlink they ought TO waive as
they lad been said 10 nave waved their nights by
udce Cardozo said the difference between himself and
that Judge that he did not think they had anything
10 waive , ,,,,
right at any rate they had regarded TINS case as sub
stantally motion TO rehear, anu the views which he
had presented aud To which he had substantially
fined himself were. they thought conclusive against this
motion.
ion this case or intiIDating what opinion he might
have he wished 20 put for the consideration OF the
counsel suppose application were made to him for
provisional remedy and that he granted CT parte sup
pose subsequently that motion were made 10 discharge
ton resting entirely In my discretion Is not appealabe
hear 10 and refuse the motion subsequently the party
appears before me and asks rehearng additional al
davts il is heard and am satisfied That was wrong
Can il he that there Is no means OF rghng that wrong
OR suppose 10 not completely matter Of discretion
but that renewable in the Appellate Court but the
Appellate Court fnd error sufficient 70 reverse
that decision but subsequently discover that was
wrong. Can he that cannot give relief III such case
do not say this Is such that could give relief
IN such case. but should DO glad 10 hear counsel OH
that point.
Judge En0t said that 10 both these cases the impor
tant element OF discretion OF the Judge ill., and II
tine Judges discretion who asked 10 rehcar
IT, His 10 the two Hypothetical would, he thought
throw very little light the question before them
WAS no appeal II indeed, provisional remedies there
were any such case
Judge Cardoz0 said the last General Term had held so
Ia several cases himself having written opinion in one
Judge Emott said that where there was no appeal he
should not question right 10 rehear by the Judge
he hRd not cOntended Against the right OF aJudge to
hear motion before appeal state Of facts,
where case was not Renewable. But what he had con
tended was at where legal question had after arg
ment been passed on by Judge aud appeal had been
duly taken by one party aud nothing presented
opinion as the old lawyers with protest. he did
consider the cases applied.
Judge Cgrdozo said he felt much ia ths oues
tOn az he had had 10 happen 20 himself 10 direct Judy
ent on demurrer for defendant when he meant paInh
He lad not hesitated 20 correct such an error
Judge EmOtt suggested that Of course clerical
might he corrected.
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