The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-02-11
SUPREME cuuHT-cHAmBEas.
Tho Erie Railroad Wharf.-The Receivership
Order Vacated.

Tho Erie Railroad Wharf.-The Receivership
Order Vacated.
Before Judge Cardozo.
august Belmont ct al. rs. The Erie Railroad COM
par.y ct DIN this case Judge Cardozo rendered .
heightened decision, OF which the following ia q
summary:-The motions in this case the argument
in which about three months since occupied the
attention Of the court for period OF nearly two
weeks, have just been decided by Judge Car
doz0 In an elaborate and exhaustive opinion
upon the questions involved. The opinion, OF
which the following is an abstract covers 100 pages
OF manuscript This matter comes before the court
upon an application to open an order made at
Special Term, to allow the defendants to introduce
proofs, which they could not produce when the mo-
ton. which resulted In that order, was heard, and
thereup0n to hear the motion anew; and, found to
be required by law and justice. to yacate the order
previously entered, and declaring that the plaintiffs
are not entitled to the relief they obtained,
to deny their motion for that relief This
is very ordinary proceeding, constantly occurring,
the Judge says but as the question was raised and
deliberately argued, he reviews at length the author
ties, promising by saying that the twentythird rule
OF the court has nothing to do with the matter. In
deed it Is manifest, and 1t has been always under
Stood that that rule relates exclusively to parte
applications made out OF court to Judee or justce
upon afdavits; and so the rule provides that upon
lahIuS W u Juukt Ut JUSTICE I'LL dppHCdtlOu IOT AL
order, in the affldavt upon which the order is
asked the party shall state whether previous ap-
pcation Tor such order has been made to any other
judge or justice. But motion upon notice to open
an order Is not addressed or presented TO the Judge
1t is an application to the Court. Judge Cardozo
concludes as result OF his review OF the discus
sions that II 1t be possible that anything should be
deemed to be settled by authority, the proposition
mat motion may upon application to the Court be
ton thinks sufficient reason exists for doing So
must be considered as c6nclusvely established. To
fal1 hrtnA
can be done upon motion to the Court may by the
Court, upon further motion be altered, modified or
wholly undone. The second subject, do the defend
ants present such justides the granting OF
the preliminary motion 10 open the rule taken against
themf is next considered, and Judge Cardozo
takes this as the test OF whether the motion to open
should be granted. Have the defendants shown any
material facts which were not presented to the court
they so far as such matters then existed prevented
from bringing them to the notice OF the Judge, by
mistake, inadvertence, SURPRISE or excusable neg
lectS' The case as insisted upon by each side,
gued by counsel and already published Is stated and
the points made by defendants that they were taken
by surprise. because the case was taken from
It's regular place on the calendar and that they had
not SUFFICIENT time to prepare the necessary papers
are held to be well taken, and even those points
unnecessary, because the one conceded fact that
this IL prosecuted at the risk and expense OF
persons other than the nominal plaintiffs, intro
duces new feature, not developed before
MIR. Justice Sutherland, which. upon authority,
Is decisive OF the motion. This fact requires
that amy rsef an
Theresa Robinson as party plaintif made BY Judge
sutherland on the 10th OF November, 1858, does not
his own behalf and all Others similarly situated
who see nt to come in and avail themselves
Of ITS benefits ,,e such Others have no control
to interfere until a decree has been made in
the cause Qnnes Vs. Lansing Paige r., p. $685., 1t
to open the order made at special term; that this Is
proper case to exercise that discretion, and that
was then made should be vacated, and the motion
for o receiver denied and the preliminary injunction
discharged An order to that effect win accordingly
And here continues the Judge) might stop; but
perhaps my whole duty could not be said to have
feel bound to hold that this is one OF the cases II
ever there were one, In which the order on the
original motion should be opened. even II the
case presented no fact which was not then fully
before the court, because l cannot hesitate to say
that the decision was utterly contrary to authorities
special term, ana which could not rightfully be dis
regarded; and therefore, from the haste with which
the case was dis disposed Of ! think i mus.
clearly the result OF inadvertence-a lack
OF recollection Of the extent to which the cases
had gone. It is true mat SUCH error would S he
sort TO other OF two remedies available to him
matter which rests very much with himself; and
timidty, anything else, should not sway Judge
TO shirk the responsibility which tho law and the
rights Of parties impose upon him. It was said by
the late Judge Cowen that il was ..the duty Of
Judge to place himself between the accused and pub.
lie clamorr
Judge Cardozo then proceeds TO show, In an ex-
tended review. why he thinks the order OF Judge
Sutherland rs plainly In law as to JUS
ufy q motion being entertained on that ground
alone TO vacate IL as being the result OF an OBJ
vious mistake. He cites authorities to show that the
case was not one for the appointment OF receiver
and then gives his views upon the question
Though he says II Is not necessary TO be determined)
whether the directors have the power TO issue bonds
lor tne amounts they may borrow to complete
anu nnsh or to operate the road and to convert
mem INTO stock He decides that the power to
issue tne bonds In proper case with the right to
authorize Their conversion into stock, IL beyond
doubt And that being so, the right OF the direc.
L. clear, not only upon fair aud reasonable reading
OF the section but upon the rule, that when power
Is granted everything which Ia necessary 10 fy ef.
fectuate y and the acts u authorizes, Is Implied
| II not expressed; aud also because n ls nut
| doing voluntarily what by a suit the company
might be compelled 10 do The holders of such
bonds would be entitled either 70 have the con-
tract TO convert them into stock speclicaiy
performed, or else % receive compensation Ia dam
ages-and whether the one or the other the pect-
mary effect on the company would be tile same
Nor does he think that II ~ at all surprising that the
power should have been conferred on the directors
A. J. yanderp0el, John f. Burrill. W. Fullerton r.
w. Stonghton, John X. Porter and u. ID. FIELD az
counsel for defendants, for the motions; and a. A.
Rapallo =. L. NJ Barlow, ana w. w. Mcfarland OF
counsel for plaintiffs, opposed.
COURT Of 0Yfa AND Tes.AEa