New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-02-11
THE ERIE WAR.

This matter comes before the Court upon an applca,
ton to open an order made at Special hv Could not pro-
duce when tho motion. which resulted ID tas d :,
found to be required by law aud justice vacate the or
der and declaring 1es 70 t Sny their
motion for that relief 1t very ordinary TX
constantly occurring. and never before 30 La mo up
usual excitement II the position assumed be true that
motion has been heard aud deciusu, hb n
appeal viii afford t will be found that the most ~ ah
Injustice may often appen without the veTy eary
laid down the rule that the principle OF
| which prevents a matter being twice hugatteu'
has application to mere inerlocntory inoso ad
But that tgiousness should not DE
or permitted practice of the Courts has been esa
iished to be that after has been fully heard
and decided It should not be reviewed again P
erent state OF facts subsequently to the first deter
minatiOn. But 1t ia claimed that however tne praeuce
NAV have been, the present rule, t23d OF the COURT
which adopted in 1885, is bar to this application 10
this to be hss Is r "a not the mo case
here the aud the present motion we're made upon
G be e Ts Int beyond this has been held
since that rule adopted that the Court e0uu grant
Vioms motion was denied But the truth s 2ad rule
OF the Court has nothing to do with the matter ~
IL was hnted however rather than argued. that even
" the Court might permit motion to be renewed when
it had been denied the rule would be different where
motion had been granted aud the defeated party sought
relief by notion The suggestion scarcely deserves notice.
for would be singular; indeed II tho power OF the
sought its aid, or the form OF tho order against when
relief asked whether IT be the party whose motion
was denied. the other SIDE the party moved against
who asks the favor II proper cause exists the prac.ce
the same. I'm either the order previously entered IS
"opcned or vacated ana the matter nenau ndom Pa
cisey II had never been argued before ana as II he
presented had then, for the first time been moved
Tho second subject which IN logical order should DC con
sdored Isl Do tho defendants present sch case as us
nes the granting OF tho preliminary motion TO open the
rule taken against thoml shall take THIS as testO
whether the motion TO open should be granted Have the
defendants shown any material facts which we're not
presented the Court upon the previous motion ana
they have they. 50 far such matters men eAiseu
prevented from bringing them to the notice Otde Judge
by mistake, inadvertance. surprise or excusaDlc neg
cct The defendants insist, first, that there are now
before the Court the answers OF the defcndnns ags
the charges of the plant rs are especially dlrccted
fuv and fairly DENYING the whole equity Of the bil and
that such was the when the former motion was
| and conciusivsly proven, and substantially I'M
denied that this is cousve suit. not brought by the
plaintiffs in good faith, anu for the purpose Tor wRlcn
was ostcusbly instituted, but that the planting are
merely Instruments IN the hands OF Daniel Drew Frank
Work, and Richard Sche, whO 1t Is charged, were en-
gagged In specuatOns by which was thelr interest 10
depress the value OF tie stock OF the Ere Kaiway Co
paiy and that this SUIT brought for that purpose
under arrangement by which Drew was TO pay na or
the expense OF the litigation ana WoTk ana 9Snea t to
order the State, by its Attorney General has IN
obtained an order which Inconsistent with that granted
In this Tho Statement; Of the arrangement ~ TO
the present motion. for the first time; ana 1t Is
sworn to by Mr. Fisk. who says that me lnlorma'
men exists given to him after he made NJ allla'
tion The AFFIDAVIT of Mr. Fisk was verified the Ith of
Dec.-was served with the motion papers and us ASSET
lions 10 The arrangement about the costs OF the st
Though information aud belief must be treated
correct because the plaintiffs have not denied their
knowlcdge Al aflSiavit Of Mr. Belmont read IN OPP
position 10 this motion, but contains not word OF de-
a that the suit the risk and expense Of the persons
| mentioned In Mr.. Fisk's AFFIDAVIT AS an ex-
S sns say y they Sy S SS surprised 5y the case being
| called out Of is usual order Oh tho calendar.
think the counsel had clear right To rely upon the
presumption that the would be heard IN their reg
uar order upon the calendar and 20 net upon That belief
do not doubt that the Judge may advance ease either
upon motion Of his own voliiion But parties, unless
they advised TO the contrary IN any particular case
have the right to assume that the regular order OF bs
nee, WIN prevail, aus t ih ircnit caiendnS Which
would cularly bo reached perhaps year heneo but
Will ANY one question that 1t would be surprise. aud
that n the party prciudced should open tho
judgment aud show tat relying upon tho fact that he
NOT S'' GOT ready for tho trial and that he had no
would make haste give him relief The principle Is
the whether the time he or few days IL is
are all addressed tho Judge then bold
lug the Special Term aud that he gave them such weight
with the hearing and that those matters cannot bo
rcconsderrd. The Judge certainly did proceed. NOT.
1t manifest from many oi Ills remarks mat no qua so
with somo hesitation about It's propucty for he several
times stated that he should be Inclined To postpone the
but the proceedings taken In another sut, and
hc finally decided o go on because could no hgH"
doubtless meaning and understanding perfectly well that
II he further papers which the defendants sought time TO
procure presented proper case they could obtain relief
I'm nrecsly the way in which they subsequently,, by the
present motions have eudeayOred 10 get IT, But be this
may the defendants have tho right To urge those
| grounds whether taken before Judge Sutherland
or not excuse for their apparent neglect.
u plain that upon the undenied fact now appearing
that the costs Of this litigation are to be borne Dy parties
other than the pnintnwhosc interests are hostile to
that 81 the Ere Runway company i1ng anu VII oStn
an ntcrlOcuOry motion, must be refused The order adj
mtting Theresa Robinson as party Platiii male by
Judge sutherland the 10Th Of November 1862 does not
affect the matter 1t results from these views mat the
Court has the power Ia the order made at Special
Term; that this Is proper ease to exercise tna ais
lerat .u and Int
order when was then nade should oe vacated hhu inc
motion for Receiver denied. and the preliminary IN
viii accordingly bo entered And here / might
stop; but perhaps my whole duty cOuld not
should feel bound to hold that this one Of tho cases
II there One which the order on the original
which not then fully before tho Court because
cannot hesitate say that the decision was utterly con
mpof tho Court nc Special Term. aud which could not
rghfuy be dsrcgarded and therefore from the haste
assumed that the decision made was clearly
the result OF inadyertence-a lack Of reeol-
upon the Judge sitting In that branch. had gone.
Perhaps before concluding will reasonably be expected
matter which, though OF course after what have said,
necessary to be determined was fully discussed upon
the argument and has been carefully considered, VIZ,
Have the directors tho power 10 Issue bonds for tho
amounts they may borrow to complete and hnis or to
operate the road and convert thcm into stock do not
doubt that II the Court satisfied that bonds were
about to DO issued by tho directors OF corporation. hot
poses authorized by the statute hut part OF frauu
lent device increase the stock the Issuing OF them
might he restrained by injunction; nor that while the
bonds remained In the hands Of any persons affected
with notice, that they did not represent bona 1de in
the issuing OF stock conversion or them might also be-
enjoncd But the papers present the facts, that does
Just this proposition: Have the directors power in
proper case to issue convertible bonds, II the
capital stock OF tho corporation be full and tho
stockholders do not authorize any increase OF 10.
The power to Issue tho bonds In proper case with the