New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-12-31
THE OLYMPIC THEATLR LITTG ATION

DEFAULT
In the Supreme Court, General Term, before
Clerke. T. j., mgraham and Sutherland, j. j. the
Boies Receiver agt Duff ct al has been again brought t.
public notice This action arises out Of convey ance abso
lutte on its face Of long lease OF the olympic Theater tC
the defendants assignee by Trmble. Trmbe's credi
tors represented by the plaintiff contendsd that this
not an absolute conveyance, but mortgage The case
for trial on the equity side OF the court before
Judge Potter and Judge Potter decided that it not
conveyance but a mortgage; but the decision in
vOlyed question of how much was due on that mort
gage, complicated by all theaters accounts he did not
give final Judgment but sent II referee decide how
much due Mr.. Duff on the mortgage, that
final judgment might be given for a specific amount.
AT the time he named Mr.. Duff Receiver in the
suit This in 1866. There has been since great
amount of litigation as 10 that receivershp which how
ever has nothing 20 do with the main litigation, in
which decisions were gwen yesterday In 1867 an act
passed permitting appeals from nterlocutOry ludg
ments in certain cases before final Judgment which
would apply 10 this case II IL applied 10 any case In
Under This act Mr.. Dun Appealed Mr. Graham and Mr.
Hall twho became Mayor last January were his counsel
this ease came before the General Perm. Curously
when the called first and the case being twice
laid over enable Mr. Dus attorneys appear, one
after appeared for m at that tern. Mr.. Thayer
Mr. Boess counsel place OF taking their default sub
United ms points, and gave notice To the other SIDE
that they had time 20 submit their points. They did not
submit them, and the Court eOncurilhg IN Judge SUN
erland's opinion, holds that the motion being for new
ence under q certain OF the law Of the and
that decision being made before The act OF 1861 cannot
be maintained not appearing that the referee has re-
ported or that the In position for final judg
ment They hold that the amendment Of 1861 has not
question Is OF Jurisdiction not affected by consents
After the submission by Mr.. Thayer Mt Hall return
ing Albany moved before Judge Cardozo TO open
W ~ I'M ti' m AZ III nv te ditias ~ Gtt"r
SHOW cause why lie default should not be opened This
before
OF Judges Cerke CardOZO and Barnard, ana MT mayer
PROTESTING that there was no default but submission
they opened the default and restored the To the cal
endar on the iith OF June the came before the
Court again. and Ar Thayer not there ana OF course
on his default Judge Poters judgment reversed.
MIR Thayer not satisfied ana moved before Clerke
T. j. CardOzo and sutherland j. to set D0th the orders
of last General Term aside The was this time
argued and the court giyes divided opinion Mr. JUS
tce Sutherland gives the chief opinion He reviews the
formal proceedings before April e6s He states that both
sides noticed for argument Tor that month that the
Court made an order on plalnth morton uaJ ueIeIuau
have leave submit points that defendant and his
counsel weTt informed OF ta order that TIE DEFENDANT
after that we'll notice through the public press
failed to submit any ponts Or MAKE any motion a. tha
"a Judge hpt member Ol thaI icIM anu %
tanned order returnable before hun Why ne
made on two afdays OF "a default taken" Mr. Justice
sutherland rcctes the delay OF the motion before
Judge CardOIo 10 the 9th OF May order obtained by
Nh Thayer from another Justice staying that notion
and the direction OF the Justice granting the ouer 10
show cause 10 proceed before him that on the 27th OF
May Du1's counsel obtained an order from Judge Car
staying all OF Boess proceedings meanwhile. and at the
same day obtained order 20 snow cause from judge
CaroIo retnrnebe at the next General Term why the
default should not be opened; that theTeupOn Dufs at
toeys served plaintiffs attorneys with these orders ana
with a notice OF argument OF Duf's motion for new
traI which plaintiffs attorney declined receive be-
cause that motion had been already submitted lie then
recees that the eth OF June plaintiffs attorney MI
Thayer In reply 10 Mayor Halls motion presented
copy uf the order Of the previous General Term drechg
Submission OF tic case 10 that General Term and pro-
test IN writing against the Courts entertaining the mo-
ton. - A.. ,o., -, r,ro IN
lac Of
attorneys had complied win the order of submission
Judge sutherland, on these facts. holds that
Iirsi It's impossible to view Duhs motion OF Juno
Term OF the case so that their decision could be bind.
ing on HIM that there nothing IN his papers eX-
privilege granted him by General Term-nothng to
Show that he wanted further tme nothing TO show
that hls case required oral argument except DaIe
statement OF his counsels wish; ..,-
second IL is impossible to call the proceeding az the
Aprl General Term default The taking OF default was
declined The Court took the case for decision.
Third However what occurred may DC ehileu u gave
the Justices Of that Term power 10 make Onu'nS uec
Fourth: II they had that power and duty then it is i'm.
possbe the General Term OF June nad Tie power
10 make these orders 1.-THE question not whether
General Term OF this Court held by q and j. ana . ma,
or has not the power one held by Justices ana
G. and b. but as TO the powers OF the m s Sa
oca duties Of each other where the performance of
such duties haG attached IN eacl particular case. vi
Se Sesoo Of power is whether the June General
Term under the uBdsputed circumstances by ueemlhg
A a al
had p0.or 20 make orders Of the 10th and lih with
he effect II do not say the Intenton OF relieving the
Apr General Term OF the power and disoharglng them
of the duty Of deciding or dsposng Of the aeIehdah1s
notion" - ,-.-.,... -, Al , ,,-i
Term 10 dispose Of the notion Irrespective OF the cues
ton OF power he thinks the orders OF the Otn ana li
JUne should be vacated the ground that they must
presume them 10 have been made under misappreheh
sion Of the proceedings April 30 when ZEN
sion they should further presume 10 nave arisen from ne
uniustifable OF the proceedings Dy deienuan
He holds that these orders should be vacated but with
out costs. -, .., A., ros,its NTH
Judge sutherland, dssents froin his opinion thaI one
lime General Term had no power 10 make any uispVs
tion OF the procedure at the April Term put hos le
November Term the power over the Juhe leIn
a. fine June Term had the April TERM anu as ne
Dissenting from Judges Barnard ana ChfdoLo eonslu
cred fhe action that Term ineXpedent III not egu
la and ami thinks So he with Judge Suther
land In his conclusion. 90 ,., y,,,,o c1orl,o
that the last General Term had the power Whoh ~
csed but differs with him IN that no reason EXISTS 10
vorv tne discretion which it exercised b. - mayer
for plaintiff John Graham and a. o. Han iof uelehuan'