The New York herald., 1868-06-09

Appeal from the Order Settling Issues--The
Tribunal of 'sSubIime, Faculties.
Before judges Barnard, sutherland and Carlozo.
The Acyor, de-, rs. Fernando Wood ei dl.-This
case came before this court this morning an ap-
peal from an order made by Mr.. Justice Cardozo
settling the issues in this suit to be tried before
jury. II had been supposed that the appeal had
been dismissed last week on the occasion when, in
consequence Of Mr.. Williams Illness 1t was believed
the court had declined to grant postponement. It
now appears that the matter dismissed last week
was an appeal in an injunction case.
Mr.. O'Gorman appeared this morning and argued
che appeal from the order framing issues. The suit
is brought by the city TO annul lease entered into
between the defendant wood and the city. on the
ground that the passage OF the resolution OF the Com
mon Council directing the leases to he drawn was
Obtained by fraud and corruption, the complaint
alleging that, In 1865, negotiations entered
into between the said Wood and the per.
and with divers persons then being members
OF said Common Council, and among
into between them II was barganed and agreed be-
tween said persons and said Wood, that in said
leases OF the premises Nos 15 and III Nassau street
and the Mayor sholld approve such resolution. the
sad Wood would pay to the said person then being
Mayor and TO such persons then being members OF
ahe Common Council as should vote In favor OF the
passage OF said resolution the sum OF s2i 600 to be
distributed among them" The answer denied fraud
or corruption In securing the passage OF the resolu.
tion by the Common Council The plaintiff moved
70 have issues framed, and the court settled the
issues so rs to submit 20 the Jury the questions
whether "the defendant Wood agreed with the per.
son then being the Mayor Of the city OF New York"
&c, and whether said resolution was passed by
fraud and corruption. holding that these were the
only specific issues raised by the pleadlngs,
The Corporation Counsel appealed from this order
the ground that the issue first named was not the
issue raised!by the complaint II was too narrow
been entered into between the defendant Wood and
the person then being the Mayor, with divers per.
sons then being members OF the Common Council.
Judge Caisl,zo expressed the opinion that this
allegation was wholly indefinite, and that In order
20 frame an issue thereon IL should specify with
what particular persons then being the members OF
the Common Council such agreement was entered
ino. Ii only differed In degree from broad allega-
ton that an agreement was entered INTO between the
defendant and the persons then being the citizens OF
New York, and II was doubtful whether any chan
celor had ever framed an issue on SO broad al ALE
RatiOn as that.
Mr.. O'Gorman admitted that II only differed In de-
gree from the illustration by the court, but the de.
gree was one having very wide range. II the ale
cation had been that a certain agreement had been
entered into between the defendant and the persons
composing the firm OF Smith. Jones Co., he con-
eidered that the allegation would then be sufficiently
1ennte upon which 70 frame an issue against that
Irm. The complaint had set forth a general allega-
odv anS Ss agst wa persons Composing
ants answer the issue had been distinctly raised by
The defendants denial OF each and every allegation
pf rauu IN tue complaint. or charging and alleging
fraud In securing the passage Of the resolution The
plaintin asked the court TO give the aid OF Jury in
parties concerned but the court had in fact raised
Sn issue not raised by the peadIngs ~N'
Judge Cardozo stated that where issues were asked
20 be framed II In the discretion OF the coprt N
lake only such issues were raised by the complaint
end upon which the conscience Of the court desired
Do be Informed After hearing such issues upon the
tria the court could then in Its discretion take mn
end hear the other issues In the pleadings II was
pot his intention in framing these issues to conone
She parties exclusively TO them II the issues raised
tn the pleadings generally were not trable on the
issues az framed.
! Mr. o'Gorman accepted the explanation Of the
eourt In regard to this principle but still held that
the issues as framed were not raised by the peadngs.
he (Mr OCorman) was desIrous and anxious that
ehe case should be brought up and finally disposed
~ before the courts He had q duty TO perform to
the citizens, and should not ne considered that In
ehe performance os tnat obligation he was nimica "
" mVod on the contrary he desired thab Nj.