New-York tribune., 1868-12-18
THE ERIE VAR
RENEWAL OF THE ARGUMENT BEFORE JUDGE
CAKDOZO-AFFIDAYIT OF MIR. BELMONT.

RENEWAL OF THE ARGUMENT BEFORE JUDGE
CARDOzO-AFFIDAYIT OF MIR. BELMONT
In the Supreme Court, Chambers, before Judge
Cardozo yesterday the argument in the case Of August
Belmont and others agt. The Erie Railway Company and
others was resumed II will be remembered that at the
day the scope of the argument was somewhat ell
larged by anew order 10 show cause. ..,o
and also aidayit that actions had been commenced
by the Ere ltalway company agl'ist W M
suit, with judge Bacoms order and opinion IhS was
Mr. RapaiIp said they also had short AFFIDAVIT to read
aud aso Mr. DiyeuS answer, which had now been put H.
Mr. Dycls aiswer says that the certificates Of stock
signed by him nst Spring, were signed 10y hm IN b1uk
i'm yer.io Of bonds aud that that 10y the Trcasu
rer without bis knowledge or assent; That s dUe"
rs Yce.Prc ia the management of tie itiIc bus
ness were very aud nat he dd not take a ac
tive part iu s financial management ~ kAe" hoihie
The Issue Of uny but the first SOJONOoi cohVeTOie
Mr vandcrpoc then commenced hi2 argument lie
did not sec that Mr. Dveus answer made Hly change Ia
the facts Tie first point he would discuss was thc pac
tce question or whether such rehrgunehi was proper
lie had aways supposed that The rctAYnindoh % nier
locutorv Crt r. duAg the pcrdo ncy of suts was com
and ordinary practice. IL was common pIraactCI
10 have motion denied. VIII ieaVe 10 Iet". ~ I5u
been equally common wien The parties subsequently as
covered new evidence or we're ga ptc' T" hiuNt on ~
ficts for leave To me Court !" F'y" t't tS,'n
and this Was commonly granted aud not necessarily ui
fore the same Judge. Ar Nant,Il0e read several "l-
th0rites to show thar such leave was |i"h,u4 "a ~. l.
ties were suipiscd or the decision was erroneous anu
claimed that they came Wiin tntsi lIlhEs u wa. ~
legged 10y the defendants lhat al tic low lac,5 ~ s
case wcio oxstag, were known BY tl,m at me tme
OF the making The notion before Judge cGtneIaha one
the cases ccd,ln smith ana Sluds' hcl" 'a", ""so
might permit rene a ~ motion on same itcls.
Mr. McFarlaT-Itat Il proposition We have AeVor
Mr. Vandcrpoel-wc certainly understood Mr.. Mott to
deny 1t. n they admitted 10. " Wauh ohF %.
% briefly refer 10 ihc case certainly "e Q'tNs w we
Lylngou could have been only lot Tue purpose vi
denying that proposition ana asserting NM ah 'rier
could bc only reviewed - repeal Iu ihc hatl's OF il
lngston the order mato on the petition was hhai iot
provisional order 1hrio 5.en,n ~ & Nv -, ~, e %
tory Rtccltcr,lp differed from other lruvsloaI rene
,nied no. Tro,tsional remedies The mic land down
Iivipstous case was Iu regard 90 final dceruiuuton
fbe otfre of Trs apicai did not aUpy 20 interlocn
tory orders. IL called attention 10 The iact that only
b, fore the argument before Judge sutherland could be
hcardsO that the other 10 Eehiieueh couiu po
for that was the practical effect; aud not hc 10
ask To loo heard here, because the two had appealed
Judee CafIozo said that he would spend further
an appeal TO thc GcueTa Term did LOT take away tAe
Mr MrFarlhnI here sud that 10 meet certain nsiua-
tons had been made, tho, desired 10 read tie follow"
ing AFFIDAVIT:
ciy and county Of Y,pT Tort A.gr. Belmont being da'y
sas tl1 be- IS Que o ihe ls'n, 10 ~ ra az a. -s
compel iug proper al4soa Of tc .as" lc l. !a.Hay
.'.i Cemlaay .l'in tJe & '-a @ l'a, M "a s s b w 1gb -
sthout aly ,o"'.l., 81 o. o.. ,l''.', % ~ I ~ C IN ', r-
paut this action That the Sail aion va an prosecuted ctre
pa.s,a m e premises, ohr rn er.ous M hA'
HirFe io Ih. 'll i';49. @ilg' t'a W. i-' 1a l,,
n,cfe. o. or the leae-t u l s9y @s det - ale q
= % i "a If tc Iii t"S.r st.,r aits referr-c 10
,l shares of tosk et rth IN l ea4paH hat rethsro
have At tine s ~ eeu uie iei D. any short a o sd
sIp, a, With aai growing out Of 'A .l urcbe Of
ssor, &c
Mr. yandcrpoel resumed his argument 10 show that The
cour,e Of mo argument had snIpiisrd Tm' ls eases @
stood on the Cham0tr' Calendar as 2lJ "iu - m OHr
eudar had been called down 20 l3o; IN the ordinary
course these would not lHNc been reached Tor some
Calendar but far back 1882 this Calendar hld been
Instituted to have called IN regular order IA teSo
cases were 10 be cat' uP out "i tH'll cn
at least they should lave had notice ot Tie intent They
had come M here with these ahdaytS uuplelattd Mr.
Vaucrpuel read from tho stcuographc minutes 10 show
tho way In which they had been forced on 10 the argu
large number of the matters which were denied iu mis-
completed affidavit. werc' as It stood before Judge Suth
crland undcued. lie called attention 10 other facts
which appeared now, Which did not appear before Judge
the Court tic fact that Judge Davies however estmable
rs a man and lawyer, not HttCd by education, aud
wos nnrd by his connection last sprilg as counsel With
those hostile To the Company for the keeeiyorsp or hls
Mr Eanallo said the part allotted to him was the dis
cusson of tho merits 10 show 10 s Honor that he
had the power 10 rchcar there was no mtorous reason
TO disturb Judge Sutlerands order. Mr. KapullO dis
cussed length tho Jursdictona question raised
the statute 10 The removal OF Directors IL was not
n limitation on the old powers ot the Court on Chancey
To relieve aud protect stockholders bat extension Of
that power Ia gave Diner persons not before tutcd 10
bring sucn suits The right to brug them IL generally
understood that this act was passed IN consequence OF
decision OF Chancellor kent-n Attorney General agt
The Bank OF Utic-that the Attorney could not
proceed IN equity but must proceed at common law MI
kapao argued that the charter the contract between
stockholders and directors under which they acquired
rights OF property which the Courts may be called 10
protect Under the old view OF corporations partnking
sovereign power different hld been taken of tho
law but that idea clearly lay at the root OF all the feSirc
tons on the powers of relief which the Courts could give
Now, when corporations had become ia tdtt cuuNccnt
partnerships. this idea swept away, ud the testrc
tons must il VITA IT, There was nothing contrary 10
that view IN Chancellor keuts decision who urus tho
right OF the Court to control The Directors as trustees Of
the stockholders. Tho Chancellor douied 20 the Court
lack that the statute was passed The scheme or the
statute was give nldCr remedy than the destruction
OF the corporation. 10 cHumercs the power OF The Court
OF Chaucory over Corpniatoa- lOSo IL 3satsSeu pi1Io
the statute well as then gwen. This enumeration
not connected with tho subsequent provisions rs
10 make them the only way OF exercising those powers
Mr.. RapalO discussed tho several sections of inc
statute claiming that is effect was 10 sweep along INC
Governmental idea Of corporate administration ana
cnlly ana cted cases 10 show IT, Mr. Rapallo quOtcd
Of corporations had given tho night 10 he 10
proceed against directors Tor breach of trs ana 10 pro
Cccd In cases uCaHst the company upu tNtuh ko
number OF cases 10 show that IN sne cases o Nouis nu
lurisdctiOu Ii the Court had jurisdiction IL cOud use
all It's tools AKccoiNcrslp was oh o. 'Hoao ioo.a uu
In whore n was necessary suo"u uo S'u, at 'Ho
Court was tho iudgo OF that necessity Ihcc Wasno
peculiar sanctlty In the property OF q corporation kc-
ccverA had before been appointed OF corporate property
Where uropcry IN The hands or Persons who are mis-
using it IccCivcrship Is the most proper remedy NOT
nm INJUNCTION I'm this case they alleged that tile other
rft the property OF the corporation I'm hands
of hr,e men and that those thlco men were wasting aud
mlsmanagng the property Recclyersip was tho only
MIR Field inquired II Mr. Rapalo had ever heard OF a
rnlOnd hcmg run hy II Receiver
Mr.. Rupallo said mol except va mortgage case Dnt 10
could p,o stage company case with which MS Honor
Judge Cardozo said IN that case he was satisfied that