The New York herald., 1871-01-07

The arcur ent upon the appeal frsyn the Orier OF
Judge Brady directing the trial of the suit OF James
Fisk, Jr. ag ainst the Albany and SrsquehAnna Rail-
road to be held In Albany or Rensselaer, county,
whcheve- the plainrlr might elect-for the sake OF
making appeal the the latter locality was
chosen--was heard yesterday, at the Supreme Court
General Term, before Judges Ingraham, Barnard
sad Cardozo.
Mr.. David Dudley Field p1ale the opening argu-
menI He began with stating in his usual clear
and succnct manner, the character OF the
suit-that The plainun, being the holder OF stock
m the Albany and Susquehanna Railroad
Company, sued Ramsey and the other directors for
alleged breaches of trust charging first that they
had sold To Groesbeok a. Co. 5000 shares OF their
stock az $25 share, when 500 a share was re-
qured; second, that they had secretly, in the night
time, without notice 10 the stockholders or other
directors, subscribed for $500 shares in order
: that they might vote upon them to carry
the election Tor directors; that, in order to
pay ten per cent upon them, they had
: borrowed 100000 of Groesbeck on pledge OF
sl5o,ooo OF the property of the company, which
had been embezzled for that purposes that they had
purloined the books to conceal the TRANSACTION: !:
that Ramsey, by direction OF Judge Smith,
had been voted 100000 In money and q large
number OF shares OF stock, under the pretence OF
paying MIN for extra services in procuring State aid
ceiving salary rom the company as Its
president and for other purposes and that answers
having been put In some in March, some In August
8nd some In October motion was finally made on
behalf Of twenty mine out OF thirty defendants TO
change the place OF trial from New York to Albany,
on the ground that there were twenty-egns Wit
nesses for the defendants in Albany and twenty ON
she line OF the Albany and susquehanna Railroad
The motion was opposed on afldayit show
Ing that the plaintiff had sixty-three wit
nesses in New York and three in Brook.
Iyn, and besides that the local influences in
Albany would prevent q fair trlal there Having
completed this summary he went on to argue that
New York was the proper place 70 hear the appeal
made by the tenth section OF the Judiciary act OF
1870; that the order was appeaable. having been
made in disregard OF certain well known rules Of
law, such as that all the defendants should join in
the application, or al least have notice OF Ii; that
She convenience OF witnesses required the trial be
had here and that the ends OF justice would not be
promoted by transferring the trial to place where
the influences were all adverse. He therefore
contended that the order appealed from ought to be
reversed. He claimed that the appeal calling for
such reversal based upon no mere iechncaltties
nut that such reversal We sther substantial right.
He dwell with great cogency on this point, and at
various stages or the argument OF course cited au-
lhontes establishing his view OF the case.
Mr. Peckham responded with his usual charac
Alter setung forth tnat this was an appea
made upon the pleadlngs and afdavit Of
Mr. Ramsey he contended that the vital
points in The case were very simple and easy OF eiu
cldation lie urged that the putting In OF a supple
mental complaint changed radically the issues in the
ease and rendered necessary an almost entirely DIFF
ferent course OF action and different line OF de-
fence. lie proceeded TO point out these differences
ana how became necessary 10 change the place of
trial, All was done regularly. His first point was
that the present court had no jurisdiction. The
order Of Judge Brady changing the place of trial
keQSSelaer q
and lnal. Tnls order set forth distinctly that the
place OF trial shall be and hereby is Changed from
New York 10 Rensselaer, county. the clerk had neg
ected 10 transmit the papers, but this made no dill
terence. The order of the Court was in full force
IL was true the clerk was responsible for his neglect
but II they were 10 wait until his was disposed
OF II might be years before such elimination was
Rppealable, and he quoted various authorities
IA support OF his theory. The argument OF the cp-
posing counsel was Ingenious but faLaclous- IT was
claimed by the o1her side that they had substan.
nal right 10 have the trial here In reply this he
defined as laid down IN the code and court deci-
eions, the meaning OF substantial right. II was not
In the present case, he contended, mere question
Of law. After dwelling on this point at some length
be urged as ms next point, tnat the palnnf had
waived his right OF appeal in eectIng the
place OF trial Iheytmade the motion on the ground
Of convenience to witnesses They wished the trial
10 be held In Albany. They did not wish 1t TO be
held IN Troy. TINS election was the paintlrs. HIS
Honor Judge Brady allowed this election, TO remove
my doubts of impartial trial. He relt satisfied
that the plainiin would meet with fair trial IN
one place as another, where MS character and his
outrageous robberies are known. The whole CON-
munify shared the feelings, In tins re-
Of Albany His next point was peup, shat
tbe TACT that Herrick alone OF the defendants did
not JON this motion, did not viuate it. the fact
he insisted, was that Herrick was no defendant.
Be was. ne alleged, IN the interest OF the plainti
There was no prayer made for him. There was
asked no judgment against him. Bringing up this Oh
lection was only refined techncallty, in which the
etner side was SO wont to indulge. Having
fence OF Mr.. Ramsay's affidavit OF merits,
which he claimed was fully in compliance with any
witnesses, that, looking the matter In
this hight the trial should be held Ill Albany Troy
All OF sudden Mr.. Fisk had become very Solicitous
about witnesses. lie wished 10 save them trouble.
HIS affidavit was only In keeping with his general
character OF impudence and ialsenood. That aff-
dayit was ialse on this point and they would
only apply TO him the Old Latin aphor-
ism-Falsus IN uno, Ialsus IN omnibus. Again
revertlng 10 tne a1idavlt OF Mr.. Ramsay, he por-
tTaSed this document as sample OF legal complete
ness rarely 10 be found and showed how III fulness
and fairness Of statements IL compared with the
andavit OF Mr. Fisk. Again gong back to the con-
yenieDee OF Witnesses he insisted that when the
Court Came 10 look at the matter honestly they
wond md that the bulk OF witnesses lived in Al
bany ana on the line OF the Albany and Susque-
fhat principle OF right and justice called for
the trial stipulated III the order appealed from.
Following the example OF Mr. Field he also INDUCED
IN liberal citation OF authorities
Mr.. Field responded lie began with reading the
raw the subject OF appeals and then took up the
points oi the opposing counsel one by one. The OBJ
lcctlon OF the opposing counsel that the appeal had
been waived because the ORDER as rescted by Judge
SD GU tuai iuC PidhsiH cICSlSa W nave The
place OF trial changed 10 RENSSELAER, county he
INSISTED most unfair 1t simply confirmed, ne further
urged what he had stated before Judge Brady the
resetlem n. OF the order, and justified everything
that had been done 10 get that order corrected By
subsequent moIIon. IL was remarkable
commentary on the criticism which mad been made
respecting resettlcment ana the subsequent appeal
IAat the counsel Tor Ramsay had here done tie very
things which he MIR. Flesdl prophesied They would
do 10 get rd OF this appeal when they got lie reset
cement from Judge Brady III the form in which ne
had given It, He (dr. Fiedl had gone back 10 Cbapl
peis 10 get anew stay on the new appeal IRON new
oraeT, the ground thai the order OF the 20th OF
December was new order. The other side had
abused him Tor doing They now came INTO
court and contended thar IL was new
order, ana on that ground Claimed 10 put
of the argument OF The appeal until next
term. Here, ne stoutly ayerred, tie grossest
Inconsistency. Again, al tue resettlemenr, ne tMr.
N ha ma Sad .t.r