The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-01-24
AN lxlON WHEEL,
Another Back and Forward Rotat.ry Movement
in the Jim Fisk Jr., and Albany and srs-
Qnahanna Railroad Suis-Still Wran-
Cling Over he Place OF Trial

The James Fisk, Jr., suit against the Albany and
Susquehanna Railroad Company, whose progressive
movements are evidently governed by the combined
influences OF centrifugal and centripetal motion
or, Ia other words, 90 in circle with no show or
prospect OF on eni-anderwent yesterday slight
rotatory process before Judge Brady, OF the SUI
preme Court. This partial rotatory process was
called out by motion 20 correct the recital IN an
order catered on the Goth Of December as to the
place OF trial. Mr.. FISK wants the case
TO BE TRIED IN THIS CITY.
The other side want tried in Albany, and an obec
ton being made on behalf OF Mr.. FISK TO the latter
place he was allowed TO select Rensselaer, county, SC
that the trial might be had ct Troy. For the pur
pose OF appealing from the order Rensselaer, county
was chosen. Thls appeal was Immediately made
that Is 10 say, on the 18th OF December
ard a stay TN the 10Th obtained, with an order tc
show cause on that day why the stay should not be
continued tn the hearing Of the appeal It Is
cessary to give IN detail all the preim inatf facts
The present motion is to correct the recital OF the
order setting forth an election OF Rensselaer, county
BY the planur, on the ground that 1t does not set
forth the facts correctly.
Mr.. David Dudley Field, the PLAINTIFFS counsel, In
urging the granting or the motion, dld net launch
out into one OF MS usual lengthy. and energetic
speeches, but read his printed points--a breyty
down To ITS minimum qllintcsscncc.
HIS FIRsT POINT
was that the order did not correctly state the de-
cisIon. "a announced in the inmates, the order
was. that 1.-The change Will be 10 tie county OF Al
TO Rensselaer, coanty,n whereas tue opposing eousl.
sci made the recital, 'unless the PLAINTIFFS counsel
ii he insisted 81 hat 10 'a only
their preference OF the county OF Rensselaer, TO the
county oil Albany: o, ,,.
was that this misrecital should be corrected, as
il attributed TO him consent he did not give
HIS THIRD POINT
was that the question was one not OF punctio, but
OF right as the order, II stood, made il appear
that be- as paintiu's COUNSEL had voluntarily made
an election OF Rensselaer, county out OF all the
counties pf the State, whereas nothing was further
THE FOURTH POINT
takes up the two rules made In January, 1870 10
prevent The ASKING VI orders ana from his showing
that the present motion comes properly BEFORE the
Judge making the order, and that the is not to
change the order IN respect 10 the decision or act Of
the Judge, but IN its recital Of certain facts. In
HIS FIFTH POINT
he combats the notion that only one party has the
right to draw up an order, and contends that It ia
not the property OF one bat OF both and that each
has the right TO lis entry.
Ills SIXTH POINT
was that The argument to show cause AGAINST this
motion has been vacated az Albany has no force as
being maze without jurisdiction and that the case
remains here TIL the decision upon the appeal from
the order to change the place OF trial.
CONCLUDING FONT
that the recital would be corrected In the report
mentioned In the notice as having been incorrectly
made under an evident mistake. supporting The
ties.
OPPOSING COUNSEL.
Mr.. Tracy, for the defendants. In resisting the mo-
ton, began with reading afidavts OF himself and MI.
Pearson his partner, to show that since the order to
show cause IN TINS case an order mad been made by
Judge Larned, OF Albany, vacatng the present order
TO show cause. He said that the order to show cause
which was obtained at Chambers, held by Judge
Barnard why the recital In Judge Brady's order shall
not be continued was perfectly proper and he had
no objection 10 it. What he objected TO was because
CT the order which continued the stay OF proceed
order ought TO show cause why The county OF
Rensselaer, was taken instead OF Albany.
IN REPLY
Mr.. Field replied that ne glad to hear from the
opposing counsel that he had objection 10 Judge
Barnard's order 10 show cause because he tMr.
Tracy had at Albany asserted that this was act
OF contuinacy; but now there was really no dilfer-
ence between them, except In respect 70 the terms
or recital. In respect TO this he Oar. feldl con-
tended that the recital must state what he Insisted
upon and no more: that he preferred Rensselaer, 10
Albany but dld not make any election OF Rensselaer,
county over all other counties OF the state and that
there W as 40 difference between theu
The Judge took the papers, re-eryins his decision.