The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-24
TEE GREAT RAILROAD WAR.
,oon,~-eoooo~y>~>~~>>
Erie and Wall Street on Their
Merits.
Judge Barnard'S Order Appointing Jay
Gould Trustee Vacated.
SHARP LEGAL MANEUvRING
A New Receiver of the Property Of
the Company Appointed.

Before Judge Sutherland.

Aci,t0Sh Us. The Erie Rdntrdy Company, august
Belnlont ana 00ers.-This great case came before
this court yesterday morning on the return Of an
order to show cause why the Injunction granted In
this action by Judge Barnard should not be set aside
together with the order appointing Jay Gould
trustee OF the Erie Railway Company with powers
and authorities OF receiver, and the order amen
datory thereof, issued two days afterwards
powering Jay Gould TO purchase with the funds OF
the company 900 shares Of Erie stock. The order
TO show cause was granted by Judge Sutherland last
week.
Messrs John f. Burril ex-Judge John X. Porter
A. J. Vanderpoel william Fullerton, Clarence Sew
ard and other gentlemen appeared on behalf OF the
plaintiff the success OF whose suit is to the para
mount interest of James Fisk, Jr.; Jay Gould and
Frederick A.. Lane. Messrs. Charles A. Rapallo ex-
Judge Edwards Pierrepont and ID. b. Eaton repre-
scented the defendants Belmont Selover, Lucke and
Others OF the antagonistc faction.
When the was called the little hencoop
used rs the chambers OF the supreme Court was
crowded TO the utmost Inconvenience, the counsel
engaged not being able to obtain n seat room 10
place chair, had they secured vacant one. None
oil the parties to the suit personally present.
Upon the case being called the counsel oppo-
sing the motion TO vacate made most strenuous
opposition to the motion being heard and asked for
delay, urging that they had not been allowed sufi-
Gent time 10 prepare.
Judge Sutherland, after repeated protests and so
hcltaons. decided that In view OF the magnitude or
the interests involved and the time already elapsed
since the service oi the order, the motion must he
proceeded with.
ME Rapallo then opened the motion and read as
1he moving papers, the order OF Injunction IN the
Mcintosh SUIT the order modifying it aud appoint
ing Jay Gould trustee, together with GouldIs pei-
ton tan OF which have been already publlshed)
aud stated that the Belmont complaint and the
order therein (Which had been granted by Judge
Sutherandl his Honor was already familiar with.
This man Mcintosh, who was the ferry superin-
tendent Of the Erie Railway Company, claimed To
be the owner OF shares OF the stock or that
corporation and prayei that all other stockholders
except himself be enjolncd from prosecuting or in
stituiing any suits against the company based
Aleir issues of stock. Mr.. Rapalio said he did
not lor the purposes OF this motion Intend 10 say
anything OF the motives which induced the learned
)u,Ige tJadge Barnaro who granted this order 10
graft II, but be deeply regretted that any member Of
he prevailed upon 10 grant such an order
lie wouid, therefore. point out only two
or three legal objections but would FIRST
read Mr.. Eelment,s answer which denied All the al.
legations % the Mclntush complaint. After reading
the complaint MIR. Rapalo SAID there was No fonnda-
ton in 1t for the order restraining the commence.
mcnt or prosecution OF suits II was not competent
Tor any individual stccknoider 10 say that all other
stockholders must come in and jointly prosecute ms
fut or allow their rights 10 80 by default aud re-
main unprotected So far AZ this order appo.ntinga
receiver was concerned n was utterly null and
volu. there was allegation reason shown
TO justify such appointment on the facts set
learned Judge who signed that order must have done
80 without looking AZ The statutes, which would
nave cithIAt uHu iuuirputtuiS rhONu Ahot Nv
Judge OUT OF court or not holding the
Slecia Ierm had power 10 appoint receiver
make up winch had no existence here. lie thea
cited the statute which prescrbcs the power Of the
court respect 10 the appointment OF receivers and
cainled thai In supplementary proceedings on exc
cntion only could a judge appoint receiver other
wise than IL provided ny the statute. II, therefore,
this had been The best IN the world for the o.,
pointment q; receiver, judge out OF court Mad no
power 90 do IT, the ease no. bs,ns one OF sach sup
much o. poss ole any reelection upon the action Of
anybod, and therefore made this motion for The ap
pointment o. receiver IN tails upon strictly
legal grounds. or course the setting aside by tins
codrt OF the order OF Injunction, II such de
should be arrived a. would carry
with II lie amendatory order THAT ofder
was in direct violation OF several OF the statutes OF
THIS Stale u directed J. Could 10 Uuy up 2o0,oJ0
srares OF Erie stock, he being the president and
trustee u the company and The purchase to be
made ont ~ the iunOs OF the company. The iegls-
laiurc mad in the trst place. By special enactment.
declared y 70 be = leony Tor company 10 appropr-
aie it, moneys to the purchase It's own stock Tor
whcn director Is made ianle 10 imprisonment for
i've years. ~ was also ~ conflict win the statutes
OF New ork relative 10 railway corporations, which
say t'iat company sIali purchase It's own STOCK.
This whole proceeding displayed Teckies-ness un G.
quailed snd voauvh 81 al usage rs "e.i as estaO-
lt-ned law. viii these rcgDarks he would leave the
ease for the action OF the Court. and his bonors
duty lmperatyeiy demanded That lac should a.
once act uyOn these orders.
Mr. Burril then rose and said his Honor was TO be
guided by we'd known rules a. 70 wnat the practice
oil the Court was. aud would not prohibit ms tMr.
Bnrril's clients from denying the allegations upon
winch ths answer u dr. belmont Wa made. II
position the set iortl IN tais answer were
irne.
Mr. Burall-Wc have none, sir. We are not only
prohibited rom meeting andayits, out counsel on
The other side have prevented Their BENZ oacred.
Mr. Burrill then proceeded at some length and eA.
ctGdly 10 rccapitulatc the lact- cOuncctcd Wih the
service OF papers bDtn SIDES In tIe MCINTOSH aud
Belmont SUITS and complained that 1.-The other sde'i
nad sat quieuy al the week aud on saturday only
served TINS orderto snow cause Way the Mcintosh
injunction should not be set aside, as well a. tue
order appointing Gould receiver and the order in0d
f'mg that appointment also. lie thought THIS ex
hbicl great want % good ian' on the otler side
70 nnd tnem now pressing tue ease 40 urgently anu
WITH suci uu-ecluy haste. After dong this and ex
.ciudirg an questions " Jaw which might arise they
come before tue Court and read tls statement con-
tanned in tue verified answer Of August belmont,
not ~ an atidasft, winch might be replied 10, but
as an answer. 1ncy naI skuiked behind tAs figid,
mean rule The parties wLo now come into cours,
charging improper motives against this plaintiff aud
tmpugning tHe motives Of tie Judge who
made TINS order. Instead or denying the
opportunity Of the paantin's reluung Those
charges should have extended 10 them
every opportunity of meeting these allegations ana
~ deehuus that Juuge; iiauEhsenl lhe feSpon-
inability W uieet The questions arising "a tlls mo
lion. Ordinary notice iron tue other side would
9nase avoided ais predicanent. The position in
-ahca Tue 0lher SIDE sought 70 place them was un-
Dusi ana embarrassing.
Another promscuOus wrange and display OF
ts4ats ana wt eusned between counsel, and
Mr- Darril, AT the cose q Tie grim pleasantry,
and assuming the attitude o. lawyer VINO Intended
10 $50 M vigorously tnis time, said the question
now came up ON the validity OF the order In the
Mcintosh suit. me oay parties, nc tBurr,lD uu-
slerstood n, we're belmont AID Mcintosh.
Nr. napall0 said due notice oi motion had been
sawed upon the attorney OF tue Erie HALLWAY
Unpany
MT Bufrill-who j. this Attorney
vi. lilo SAID AZ was Mr.. william VI. Tweed Jr.
Judge sutherland, after some discussion, decided
fOliplr " ga az, own order.
Nf. Burrit again began his complaining OF lack Of
obfglngnes- ~ "tne other slden and attributed nis
puAdon 10 the oesgn Of ''that party" 10 prevent
thc platinum from bringing before tile Court The cir
.2mAancss under winch the original order was Oh
lsine0 aud me good faih u the pIaintir The most
wal and impoTapt question was the good or bad faith
OF the piaintin ~ making ihis ppcaton--whethcr
NJ u he true mat nc nad commenced the quit the
benefit of the stockholders, or whether In collision
.ltn other parties, as charged by the other sidc.
nll. nlIeslon OF cVlnsinn the xnrt nIaL Of TING