The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-27

shown 10 authorize me to say that the afidavt was
30 necessary for these motions that would be Just
heu al THIS late day, after the liberal opportunity
nave Afforded TO both sides for the preparation and
discussion OF these notions and after have de-
voted 80 much time TO them, listening already TO
SIX speeches, and when nothing remains but to
hear the argument OF the counsel who was to close,
IN throwing open the whole case again; because. OF
opportunity must be Afforded TO the defendants to
meet 1t, thus indefinitely procrastinatng and ex-
tending this matter. The plaintiffs not having when
thus called upon shown the afidavit to be ''neces
sary." The order to examine Mr.. Owen must be va
Mr. Rapallo--we shall eventually procure the
afdavt OF Mr.. Owen, Notwithstanding the attempt
OF my learned friends to stife this evidence.
davit voluntarily II he sees fit.
Mr. Rapalio-We shall compel II Involuntary.
the Coart-Ihe present disposition of the motion
Mr.. Rapailo--i am quite aware Of that, and II
am fortunate enough to obtain the affidavit before
your Honor has decided this motion, think You will
he satisfied that Il ought 10 he received And II 1t Is
not procured until after your decision II may afford
ground for rehearing.
MI. Field, for the defendants, then proceeded with
his argument and said that the plaintiffs had In
sisted In answer 10 the defendants application that
that " entertained IL would he contrary TO the prac
tce Of the court TO grant it, and that II granted and
a rearEumenf had the order appointing MIR. Davies
receiver should not be discharged or disturbed The
defendants on the other hand insist that the court
has power TO entertain the application; that being
entertained 1t should be granted, and that
upon the reargument, taking into consideration
The additional papers now before the court The
order appointing Mr.. Davies receiver should he dis
charged. We claim that the court has power to
teriain the application. Thaf power ~ expressly
conferred by section ia OF the code Which declares
that the court "may, In its discretion and upon such
terms as may be Just at any time Within one year
after notice thereof relieve party from q Judgment
order or other proceeding taken against him through
his mistake. inadverence, surprise eXcuSable
neglect.' Even without this provision the power Of
been doubtful. We know that 1t IL u common prac
tce TO give leave to renew motion once heard
ana decided II the moving party can have rear
gument there IL no reason why the resisting party
should lot also have IL. motion has been reargued
q second time before the Chancellor Of England
though various technical objections were urged
against 1t. ok partc Besley, Macn. and Co. 2s7.)
The English Court of Chancery will in general re-
hear petitions and rescnd former orders upon fresh
evidence rendered. tRe Lavender Deac. ana
Chit, 4g5. See also Attorney General Vs. Croft Is Jur
1o2S The case OF ex parte Livingston, "a \. Y. sos
II the C0nrt had not the power OF reopening mo-
lion there must often be denial OF justice. An APP
Which the order complaneI Of was "raneJ Other
papers may be most important to The ends OF Justice
The party may inadvertently have lost the oppor-
tunity to produce them. Would 1t not he the gross
est injustice to debar him from the opportunity to
exhibit his whole case? Yet no other means are lett
When it is said tnat the reargument should be had
before the Judge who made the first order the
Is that this was attempted IN the present case.
The defendants attorneys went into chambers to
ask Mr. Justice Sutherland for the order to show
cause But he was absent. and therenpon they went
branch OF the Court ut the Special Term that there
Is, however sufficient or legal reason why mat
ter heard ny one Judge may not be considered anew
by another. II s common practice TO make mo
ton for new trial before Judge other than the
ono who tried the case before II has been held by the
General Term in the First district tSeldon Chris
;opher, Abb, 272 that an order made by one judge
ON argument may be modified by another ut Special
Term and by the General Term in the Sixth dis
trict WilkHsOn Tiffany. Abb 9s, that an order
mproyidenty granted may be set aside by any Judge
Of enc coar! u Z sa,a, however Ga. ihe dsisna.
ants have appealed from the order and that debals
them from moving to discharge II. There Is no in.
sistency between the two proceedings, there Is
between appealing from an order and taking the
benefit or H. Us in Bennett Van Sycke IS N " ASH
The rcopening OF the motion aud reargument being
thus shown TO be within the power OF the Court,
should be granted. The defendants were on the
former Argument taken by surprise. Though the
order TO show cause was granted on tue 18th Of No
veniber, returnahc on the 2sd yet 1t alowcd afda.
Wits in support Of the motion to be served till noon
or Saturday, the 2st. rill these afdaviis were all
served the defendants counsel could not know the
could not reasonably be expected to arrange the
defence: More than this, they knew. that
the injunction in Mclnioshs case prevented
any movement in Bemonts case and IL was not till
Saturday, the alst that they were served with tho
papers on which the motion 70 yacate that inJunc-
tcn was to be made This motion was or course the
nrst To DC met, ana preparation for that must have
occupied what was left Of Saturday and Monday
morning before the time OF argument. IL was there
fore, no wonder that they were not then prepared
for the main argument Under these circumstances
were hardly needed But there are a1iIdavits.
nevertheless, OF the most positive character, that
the defendants were taken by surprise and unprc-
pared. The principal defendant IS u corporation in
whose capital AZ invested The property OF a great
many persons. Any neglect OF the officers II neglect
there be, 20 present the whole OF their would ope
rate TO the disadvantage not only or Themselves bu
OF many Innocent persons. For the sake OF these, IL
Tor no others ample opportunities should have been
afforded for the investigation Of the facts and the
law on which the right to administer the enormous
properly OF this corporation must be made 10 depend
motion OF this magnitude was sure 10 he carried
Dy one pafty Or the Other upOu appeal To the Gene
ri Term. There the case could be heard only upon
the aildayiis used IN the first instance. No opoor
tuny Is there afforded TO supply defects In proof
Considering therefore, the relations OF the parties
their respective positions. personal and Representa-
tive, the magnitude Of the Interests involved ana the
consequences Of decision IL was reasonable In the
defendants counsel 10 expect a little further
time 10 present the case OF their clients. Say
lng tlis does not IMPLY the least reflection upon
tue learned Judge who refused The delay. His
npr2htness IN al things. his hrmness In the dis.
Charge ~ MS judicial duties, his Uniform courtesy
on the bench, and MS panatakng soicitude to see
that justice u done 10 every are known TO all.
Nothing more IN meant tnln THAI he erred as al
men may Tor all these reasons the defendants
submit that case II presented, IN which not only
- y re-argnment proper but In which denial OF II
woud work great Injustice. n receiver were
prOpcr M all, Mr. Dawes should not be thrt
receiver because he has no knowledge OF
railway management. some acquaintance with
the business 0 railways must be considered neces-
sary 10 tie person who is TO manage them. Vi the
only purpose OF the receivership were 10 wind up
iha concern there might be some show of reason in
appointing him To the sciylcc but to carry on the
traiic keep the road In repair. lay down rails.
MAINTAIN the connections, compete FOR goods aud
passengers, are not dates for which nc q qua ilcd
ana 10 pnt them upon him ls to invite disorder ana
pathlcs and hls Interests arc opn"scd ~
the maintenance Of the rights Of the COMPANY and
the stockholders, IN most iaaicrial respects. lie
was The counsel for the vanderbilt interest IN the
late litigation. That interest was striving and Ii 4
iair 20 presume i still striving make The rival lines
o. WE hudson River ana Central outsrip The Erie In
the competition for Western franc. lie cannot bc
.Aprrss,i ~ espOuse the cause OF the Erie Railway