The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-09-11
NEW YORK CITY.
THE COURTS.
SUPREME CHAMBERS.

SUPREME c0URT-cEAMBeRs.
The Alleged Pacific Mail Perjury Case-Decl.
sion Adverse to the Plsintin-The Original
Papers 20 be Sent 70 the District Attorney.
Before Judge CardOZo.
WWtdfH AOser uS. e. J. Jackson ana James A. POI
hanatus.-Thls was suit to set aside judgment Of
about $l26OOO, obtained in the Superior Court about
year ago by these defendants against this plaintiff
This palntin was induced by one William j. Rec to
60 INTO STOCK transaction In Pacific Mail, assuring
MIN that a large amount Of money could be made by
an anticipated increase In value which did not take
place, but 1t deprecated largely instead Afterwards
Moser and Rec together called at the Office of POLKA
MUS Jackson ana Rec gave an order for the pur.
stock, az price not to exceed 1885, The stock
fell sun lurther and Polhamius Jackson endeav-
ored 10 put upon Ree or rather upon him and Moser
considerably larger amount OF the stock and Rec
being OF lltte pecunlary responsibility induced him
10 aia .'t1n IN throwing II upon Moser, and judg
ment In tne suit went against him.
AiluaViG' were made by George f. Britton, Charles
Malflson, George d. Carroll, Edmund Kimball and
Colonel fotter detailing certain conversations over
heard by them between Rec and Jackson in
when, Dy reason OF Reefs responsibility, it was
agreed that Moser should be held responsible An
interlocutory motion was made in this suit and on
that motion aflldavits made by these very men were
brought up to oppose the first of anldavts, and
The case was heard by Judge Cardozo IN the early
part OF iast July, and yesterday he rendered
| lcHSeHy opluiOU anu decision on the motion by
Moser 10 continue an Injunction enoining the Sheriff
from enforcing the Judgment.
In MS opinion Judge Cardozo says that a case Of
tnls nature involving "dltlcult questions OF fact"
should not nave been sent before referee and had
the motion for sucn reference been made before HIM
he would have denied it, according to the practice
as III mas existed ever since the statute authorizing
references was passed. and that If there was
case IN winch by reason Of the nicely OF the only
question: involved the trial OF the issue should have
been before jury this that case The question
really turned upon the point whether Rec, In giving
an oruer LOT the purchase OF stock in Moser's pres
ence spoke IN the singular or plural number. The
Judge then goes on TO crticise very severely the
action OF the referee in rendering his report within
so Drlef time (hfteen or twenty days. where the
largeness OF the amount involved seemed to require
mature consideration and also by reason of the fact
that the report submitted without any opinion
by the referee stating how by what means or for
what reason he had reached his conclusion, and the
rendition OF correct report involved the eXamna-
tl0n and consideration OF over foliOs of evidence.
Included IN the report was sum OF 81, 200, as to
which 1t is not denied there evidence to sup
port IL, and this great oversight in Of such
magnitude would OCCASION in his Judge Cardozo's)
mnd such distrust Of the accuracy OF the report
That he should have felt called upon instead VI
ducing 1t to set 1t entirely aside and submit the
to jury, and would have felt less hesitancy about
adopting this course for the reason that the only
harm, III view OF MIR. Moser's undoubted respon-
sibility, that could have accrued to Messrs
Pohamins \ jackson would have been little delay,
which would have been inconsderable in view OF
the importance OF the careful administration OF
justice. The only ground, however, upon which
Mr. Moser could obtain relief here is that the judg
to the jurisdiction OF this court 10 entertain an ac
ton like the present. The nsuperable difficulty to
the granting OF TINS motion rests upon the failure OF
the plaintiff to support by credible evidence the
allegations or fraud which he makes. To sustain
this court In preventing the enforcement OF the
judgment against himself, Mi. MOser on the ground
OF fraud In obtaining it, the fraud charged not
only be plain anu palpable but the evidence by
which 1t Is to be proven must be clear, positive and
crediable; and however clear of fault the Court may
believe him to be- he has the misfortune to have
credible witnesses to support his allegations, and the
judgment must then stand against him. The fraud
charged here is attempted to be proved by the
dence OF Ree Briton, Carroll, Potter and Madison.
IL Is unnecessary TO repeat here why Reefs evidence
could not be regarded, and to the four other per-
sons probably never before was such an exhibition
Will be again Not only did these men make several
contradictory aldavtS, but they appeared in court
before me and on oath confessed that they had will
fully and deliberately sworn In Of the adavits
to things they knew to be untrue. II threats or any
other means could induce those people to perjure
themselves cannot believe them at all. That is the
difficulty with the plantifrs case. His witnesses are
wholly unworthy OF belief, and being 80 must
pc discredted, and being discredted the
Judgment OF the Superior Court stands
unimpeached, and standing unimpeacned its en-
these reasons the motion to continue Injunction
must be denied and the preliminary Injunction va
cated but from what have said 1t is plain that IL
my opinion 1t should be done without costs and
with leave to the plaintiff to discontinue this action
without costs, and the defendants stipulate not
to move for leave to sue the undertaking gwen upon
the granting or the temporary injunction, and not
to bring any action for damages on account OF IT,
Respecting the course TO be pursued as to the per-
sons VINO made the andavits referred to- and any
further investigation which may think proper TO be
all the original papers to the District Attorney for
his action, making to him such suggestions as
deem the circumstances demand ordered &C.
c0rdlngly.