The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-07-21
SUPERIOR couAT-spEcAL TERM.

Order, Paid to Receiver Barr, and the
Defendants Purged Of Their Contempt
History of the Case.
Before Judge McCunn.
John OMdhony Us august Belmont, Ernest B..
Lsicke ana John Ldaoless.-This interesting litigation
again came up before the court yesterday, on mo-
ton Of counsel for the receiver appointed by the
Court to be paid to receive and to retain possession
Of the sum Of Sl6 1873 TO- in g0d known as the Fenian
fund, pending the order OF the Court for its proper
disposition when the whole case shall have been
AS has been before reported, Judge McCunn on the
affidavts submitted to him In the case, issued an
the defendants, Belmont and LucKe, to pay over 10
the receiver appointed In the case Mr. Thomas J.
Barr, the funds, amounting to the sum as stated
above and known as the Fenian fund, which sum
had been handed to them by Mr.. OMahoney, at the
time the chief executive OF the Fenian organization.
1t may proper to state that in exchange for
this sum, and for Its due transmission TO Ireland,
Messrs. Belmont co. forwarded drafts for the
amount to Ireland. which drafts fell into the hands
OF the British government and could not be hOnored,
aud were consequently never PAID, the money, as
claimed, beng still in the hands OF the defendants.
There is double sultat issue. The proceedings,
as originally instituted, and out Of which the
present have sprung were decided against Belmont
and Lucke, in the interest Of John Lawless plaintiff
but now party defendant in tue present proceed
ings--a lawyer in Dublin-and VINO claims, through
his counsel, Messrs. Rice, Wilson and Jones' OF this
CITY, the funds referred to as his due for professional
services In the defence OF Fenian prisoners The
suit OF Lawiess VS.. he mon and Lucke originally was
supposed to be a friendly suit IN the interest OF
what might be termed, as Is alleged, ring. Mr..
O'Mahoney once instituted suit In the interest of
himself, aud TO secure proper disposition OF
the Fenian funds, making Lawless one Of the de-
PENDANTS thereto.
On Mr.. O'Mahoney's motion and on the af1davits
submitted the court appointed receiver to whom
the defendants Belmont and Lucke were ordered to
pay over the funds in question until such time as the
courts shall order final disposition Of the same
The case came up yesterday morning on motion
hue fcph naRN I'm fApa
ment against Belmont and Lucke to commit them for
contempt OF court In having refused to obey the
order Of the court in the premises
SPICY DISCUSSION.
Mr.. James Henderson, counsel for the receiver,
stated to the Court the grounds Of the motion.
Mr.. william w. Mcfarland counsel for Mr.. Lucke,
asked II there had not been o substitution of at
t0rney on behalf of the plaintiff:
Mr.. Page representing Mr.. O'Mahoney]-There has
been no substitution whatever
Mr.. McFarlanu-Did not Mr.. HENDERSON, who
acts in the part Of the receiver act in procuring his
Judge McCunn-That is foreign to this ISSUE
Mr.. Mcfarland then craved the indulgence OF the
court until tomorrow morning, In order to enable
him 10 prepare a1idavtts to resist the motion.
Judge McCunn asked If Mr. Lucke was in court
and on being informed by his counsel that ne was
would hear no explanation in the matter until
Mr.. Lucke made his appearance in court.
gentleman, who soon after entered the Court room.
Mr.. McFarland-I have entered into stipulation
with Mr.. Tallmadge, who represented the plaintiff,
purpose Of allowing the defendant an opportunity TO
prepare afiidavlts.
not recognize any stipulation entered into by Mr..
Judge McCunn said he understood Mr.. Tamadge
to be out Of the case and he therefore only rec0g
nized Mr.. Page in the proceeding.
Mr.. Mcfarland having detailed the proceedings
had in the case heretofore both IN the supreme and
Superior Courts, and which have already appeared
fully in the HERALD, asked for time TO send for some
Judge Mccunn asked what in eject did the anlda-
Mr.. Mcfarland said he could not give the details.
Judge McCunn remarked that 1t was easy to state
what the affidavit contained, because If counsel
wanted time for any other purpose he would Ger
Mr.. Mcfarland was sorry that hts motive was mis-
Judge McCunn-Counsel must have put the mis-
construction upon 1t himself.
sending for the affidavits. He stood under the i'm
putaton Of having said something he could not
mean.
Judge McCunn-You certainly promised at your
interview with me In the other court room that you
would consent to Mr.. Barr's appointment, and that
you should arrange also to have him appointed re-
ceiver In the other suit. Did you or did you nota
Mr. Northumberland the slightest doubt did,
sir.
sued thenS / want 10 know the reason and will
listen to no other. The disputes and chickering's OF
counsel win not listen to. Mr. LucSe Is under con.
funds that don't belong to him, and admitted by
himself not to belong co him. Will listen to no other
excuse. Is there any order OF attachment drawn IN
this case'
Mr. McFarland-I desire to Introduce anidavits I
only want time to send 10 my Office Tor them, TO show
that Mr.. Lucke cannot be required TO pay this
money and to show that he is not In contempt. On
these questions must insist, standing as do, repre-
sentlng my client, under the threat OF an attach
ment apparently for the purpose OF benenng the
receiver and nobody else Therefore l must ask
your AQ99r 70 determine the matter. e 80
Judge McCunI-l think you should have brought
m afHdpvits
MIR. Paae-When we came into court this morning
II was definitely and distinctly understood between
done here except to pay the money over to the re-
ceiver. And now the chickering's and arguments
which have taken place, the statements OF counsel
on the enc side and on the other and even the state
ments between the counsel and the Judge are
contend, entirely foreign TO the case at issue.
MT .. Mcfarland XS,teayAmcaSe arrange
to anything having due regard to the interests
my client; but when wrong Is threatened, nothing
Judge McCunn-l think without any divine inter-
position whatever viii move you one inch or more
Mr.. PageMwe are here upon our legal rights and
we are taking them. l am ready and willing to
carry out the understanding entered into.
Mr.. McFarland--Do understand the Judge win
Mr.. Page-Hc will allow It.
Judge McCunn-What Is tnatp
Mr. pagsWnettn tn your Honor will allow the
Judge-fes anything that IS reasonable, fair and
just
THE FUNDS PAID OVER.
the following order was then prepared and sub
United TO the Court:
term of ~ supsrer Court Of tn. city Of New
July, 1859. Present, John II. McCnnn Justice.
reading and Ss S S sd s 81 as Macs BARI &,
ssvsr IN THIS ACTON showing due personal service hs de
OF this court The 10th day of july 1859 requiring the
Ernest B. Lucke and August Belmont TO pay over and ee
liver certain personal property therein speced TO such
ceiver and aHo showing demand of property Of The
said defendants and their neglect refusal deliver The
same or any part thereof and on motion Of James Hender
counsel the receiver to punish said TO,
disobedience 70 said order; after hearing william
Page plaintiff Ia hereby ordered tha. upon sd de-
PENDANTS forthwith complying with the made by th
Court the 18th day of July 1852 appointing rece va
herein by paving said the sum OF I67ss ~ n
gold coin OF United satcs the said defendant h.
| purged Of and from all contempt thcrcin.
said IL hereby directed nav the sum
81 800 United States currency 10 the defendants
herein Of said fund counsel fees and In
| CURED herein.
And that in default thereof the part OF the
said Ernest b. Lucke stand committed common iai q
the county OF until the said be paId 10 sa
receiver and warrant Issue carry this order in
| effect. (Entered) JOHN II. MoCuNN.