New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1871-01-07
THE COURTS.

TIE FIsK-sUsQUEHANNA WAR-ARGUMENT ON
THE APPEAL FROM JUDGE BRADYs ORDER
CHANGING THE PLACE OF TRIAL.
The appeal in the suit of James Fisk, Jr.,
against the Albany and Susquehanna Railroad Co., from
the order by Judge Brady changing tho place OF
trial to Rensselaer, County was argued yesterday a ne
Supreme Court General Term before Presiding Justice
Ingraham and Justices Barnard and Cardozo. DaWd
Dudley Field appeared for Mr. Fisk, and after briehy
stating the case presented the following points;
First This appeal to be heard the K District seocnd The
oiss a oS.. saua, Is bring &.
The motion 70 change The too a fVh The gratag o.
srl The moving .@d.i Or two There .
M even e :. to S.e Usn@ All The Defendants G not
o I n snisss ,sgi s s . was
respect to the number Of bic NaA If true that the
he % S .Sy b III tS:IsS Ss.
b. %. % the % The local nee , pe,f scs
would not be promoted By the change E" The order to change
Mr. Field In support Of his propositions said that the
change OF the place Of trial not surely completed upon
the judges pr0nouncing his decision by entry OF
that decision in the clerks minutes Nor does the entry
pealed from and order staying all proceedings
granted, az was the case here. The Legislature has
statute which expressly provides that all appeals shall
be heard and determined In the department IN which me
Whif tie matter brought up arose."
q the second point he said that 1t has been
de that such an order when made as n matter OF
RI, .sappeaabe. While the code limits appeals TO the
Co. Of Appeals by excluding orders involving ques
ton OF discretion, it thus distinctly implies that the
decision of the Court be reviewed at the General
Term. This amendment also shows that an order may
affect substantial right though he matter Of dscre
ton. Whenever courts have established fixed and
regular practice, parties have tho right to require ad
hercnce TO this practice and the discretion OF the Court
is bound thereby. violation of such practice affords
good ground for appeal This settled practice OF the
Court has been dsregarded and this very ground we
ask for reversal Even the practice OF the Court had
not been in respect TO the rule as to the con
regarded In respect TO cardinal principles l. That all
parties must join in the application. O. That the moving
parties must all make an affidavit Of merits. .
Under the seventh point, Mr. Fields said that the de-
PENDANT Herrick did not join in the notion nor wss ne
served with notice Of it, The other defendants alleged
that he was merely nominal party and made such by
M Fisk and Gt OF EdwaTd Ensign with to the
local feeling prevailing at Albany against MI Fisk MI
tia jury trial and II the trial by the Court
the local influences which surround 1t would make the
discharge OF its duty unpleasant and difficult He did
not desire to go into place where according 70 tne
papers, in fighting Ramsay they night the whole CITY or
Albany and every good man In that part OF the state,
ana where they should and must to the wall" II this
state Of feeling existed in Albany the County OF Kens
seaer was certainly not free from IT, In conclusion he
said that the change would produce great inconvenience
to a majority OF the witnesses.
Rufus W. Peckham, jr. behalf Of the Company, re-
piled to Mr. Field, and claimed that the Court had no
Jurisdiction to the appeal the place OF trial was
ordet The order so made reads shall be and hereby IS
changed" and the transmission of papers required
by the rules follows the change made by the order me
code makes the change complete by the act OF the Court
in ordering it, and the change not dependent on the
clerks diligence III transmitting inc papers, ~
instantly, in the of such change by voluntary
amendment OF the complaint The order is not appeal
able it does not involve asubstantia right Inc PLAIN
t BY electing the County Of Rensselaer, assented to
order and therefore appeal from IT, The fact
that the defendant HerTck did not Join in the making
OF the motion Nr. Peckham said Of
importance. He was in the interest OF the
plaintiff, and II, living fat Albany, he was
content with the change Of venue to Rensselaer, he
must move for relief. Those who did move for the
change had knowledge of any service appearance or
Herrck and it did not appear that Herriek
had any interest in the question OF the change when was
adj
demanded nothing Of him. and counsel was OF the
opinion he acting in the interest OF MT FISK
In conclusion Mr.. Peckham said that the motion was
meritorlous, and was made with diligence. great
number of witnesses residing at or near Albany would
there, and the enlargement OF the plantts case by
supplemental complaint increased the necessity for
calling witnesses from Albany and its vicinity.
AT the conclusion of Mr. Peckams argument, Mr Field
made a brief reply. Decision reserved.