The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-12-31
oLy%.sp1AN GAMES.
The Olympic Theatre Litisation-One Gen.
oroj 81 IL pa a.
ai Term ana Another-What
uefnult! -

Atthe supreme Court, General Term, before Judges
Cietke ingraham and Sutherland the case OF Boles,
receiver vs.. Dun CT al, was decided yesterday. This
action arises out or o conveyance, absolute on Its
face OF a long lease OF the Olympic theatre to the
defendants assignee by one Trinble. Trimbles
creditors, represented by the plaintiff contended
that this was not absolute conveyance but mort
gage. the case came for trial on the equity side
OF the court before Judge Potter, who decided that it
was not q conveyance but q mortgage but, as the
decision involved question of how much was due
on that mortgage complicated By all theatres
accounts, he did not give nnal Judgment but
sent IL TO referee to decide how much was
due Mr. Dun on the mortgage, so that mai
judgment might DO given lor specinc
amount AT the came time he named Mr.
Dun as receiver in the suit. This was i2 iUuo
There has been great amount Of litigation since
as to that receyershp, which, however has nothing
TO do with the main litigation IN which decisions
were given yesterday. In 1867 an act was passed
permitting appe ais from mterlocutory judgments in
certain cases before dnal judgment, which would
apply TO this case II IL applied to any case In which
Judgment had been given previous TO its passage
Under this act Mr.. Duff appealed. MI. Graham and
Mr.. Han, who became Mayor last January, were his
counsel. besides his attorney, Mr.. Van Antwerp In
Curousy enough, Mr.. Van Antwerp was the only
one present when the case was called first and the
case being twice laid to enable Mr.. Duis attor-
neys to appear no one after that appeared for him
at that term Mr. Thayer. Mr.. Boles' counsel
In place Of taking their Default submitted
mis- points and gave notice to the other SIDE
that they had time to submit their points, They did
not submit them, and the Court, concnrring In Judge
Sutherland's opinion, holds that the motion being
n MT N ifl1Sy
but for reference under certain view Of the law
OF the case and that decision being made before the
act OF 1861 cannot be maintained, II not appearing
that the referee has reported that the case is In
position for final Judgment They hold that the
decision OF 1865 and that this anestion is one Of
Jurisdiction not affected by consents or omissions
of attorneys.
After the submission by ME Thayer Mr. Hall re-
turning from Albany, moved before Judge Cardozo
to open default in this case on the ground that his
public duties as Mayor had interfered with his PIT
vate duties as attorney In the case, ana Judge Car
do1o granted an order 10 show cause why the default
should not be opened This motion was argued
before q new General Term composed Of Judges
Cierke, Cardezo and Barnard; and MIR. Thayer pro
they opened the default and the case to The
calendar. On the 18th OF June the case came before
tue court again and Mr.. Thayer was NOT there ana
on his default Judge Potter's udgme mt reversed
before Judges Clerke, Cardozo and Sutherland.
THE 5IUDDLE AND MYSTERY OF LAW.
Mr.. Ihayer was not satisfied and moved TO set
both the ur0ers Of the General Term aside The case
was this time argued, aud the court gives divided
opinion. He reviews the formal proceedings before
April 1908. lie states that both sides noticed ii Tor
argument FOR that month; that the court made an
order on paint1's motion that defendant have leave
to submit points; that defendant and his counsel
were notified OF That order; thar the defendant
after that, as well as notice through the pubic
press failed to submit any points or make anY mo-
ton at that General Term, but after its Adjournment
applied TO Judge, not member OF that term and
obtained an order. rerurnable before him. why toe
default should not be opened; that this motion was
made on two aifdavits OF "a default taken.n MIR.
Justice sutherland then recites the delay OF the mo-
ton before Judge Cardozo 10 the 9th OF May, an
order obtained by AIR. Tnayer from another Justice
staying that motion and the direction OF the Justice
granting the order TO show cause to proceed before
him that on the 27th OF May Dufis counse. Obtained
an order from Judge Cardozo adjournng the case TO
the next General Term but staying all or Bocs' pro-
ceedings meanwhile and on the same day obtained an
ordero show cause from Judge Cardozo returnabe at
the next General Term, why the .deauit should not
be opened; that thereupon Dnf's attorneys served
n0uce OF argument or Ours motion for new trial
which plaintiffs attorney declined to receive because
that motion had been already submitted
THIS protest WAe qyfgg6 "lee other order was made
Dui's attorneys had not complied with the order OF
submission Of the April term.
Judge Sutherland, n these facts, holds that nrst
1t Is impossible to view Dun's motion OF June 10 as
recognizing submission to the April General Term
him, that there was nothing in his papers excusiDQ
himself for not having awaited himself OF the priv
lege granted him by that General Term; nothing 10
show that he even wanted further time nothing To
show that his case required oral argument EXCEPT a
bare statement OF his couDsels wish. Second IL Is
Gene
raj Term q default. The taking OF default was de-
clined. The court took the case Tor decision Third
However. what occurred may be cued, 10 gave the
justices OF that term power to make a binding de-
cisioD. Fourth, II they had that power and duty
then, 1t is impossible TO say the General Term
OF June had the power TO make these orders The
question Is mot whether General Term OF this court
held oy Q and g aud D has or has not the same
power as one held by Justices and ana b - but as
to the powers OF the ADMINISTRATORS this court 10
interfere with the performance or the oicIa duties
OF each other where the performance OF such duties
has attached in each particular case. 'Oi course
there Is no limit TO the powers OF thmknVv hut the
question or power is, whether the June General
Term, under the undlsputed circumstances by deem.
ing or calling the proceeding OF the Goth OF April
default " had power 70 make Its orders OF the 10th
and lsth with the effect do not say the intentIonl
OF relieving the April General Term of the power
and discnar9ng them OF the duty OF deciding or
dsposing OF the defendants motion y He thinks N
the plain duty or the Justices OF the AprjI Term RI
dispose OF the motion. Irrespective OF the n,estion
OF power he thinks the orders OF the 10th and l4th
OF June should be vacated on the ground that they
must presume them TO have been made under mis-
apprehension or the proceedings on Aplll 90 Witch
misrepresentation they should further presume Ia
have arisen from the unjusttnable missioner OF the
proceedings by defendant and his ATTORNEYS. lie
holds that these orders should be vacated o. with
out costs.
Mr.. Justice Clerke while agreeing In results with
Judge Sutherland, dissents from his opinion that
the June General Term had no power to make any
disposition OF the procedure at the April term. but
holds the November term has the same power ever
tue June term as the June term had over the April
term, and a. he, dissenting from Judges Barnard
and Cafd0zo considered the action OF that term as
inexpedient II not irregular, aud still thinks So ne
conCutB with Judge Sutherland In MIS- Conclugion
Judge Cardozo dissents He agrees with Judge
Clerke, that the last General Term had the power
which 1t exercised but differs from him IN thar ..no
reason exists to vary the discretion which II exer-
cised."