New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1871-02-10
THE ERIE PREFERRED STOCK SUITS.

ORDER-RRyERsAL OF HIS DECISION HOLD
ING CERTAIN AFFIDAvITS As sCANDALOUs.
1t will be remembered that an order was
made by Judge Roserans last November In the case OF
John W. Thompson and Others agt. The Erie Railway
Company, striking out the defendants answeI sham
and frivolous and also certain adayts realm opposi
ton 10 the plaintiffs motion scandaOue This order
appealed FROM and the order brought on before
the General Term at Albany, on Tuesday last Mesrrs
Thomas q. shearman and VIM. A. Beach appeared foi
the Company and Messrs. Frank Thompson and James
EmOtt for the plaintiffs. The argument upen The merits
was very long occupying nearly four hours and turned
largely upon questions q law not Of very general IN
terfst Nj Shearman however, who uad7 one "i vac
afliavit3 consUeC by Judge RoseArahs IN 'oLciuNhs
me opinion OF Judge Rosebrans has already been tho
subject comment far as it undertakes - determine
questions of law in this case DBt II doinanGs Iihr
notice by way OF general review IL extIrme length ~
alone almost sufficient 10 establish The Injustice o ne
dec ion arrived at We have already shown that II Il
the we!!settied rule that an answer cannot Pe suSSn
paIcpty falseso false a. TO imply necessaiiy' pan
faith on tile part Of the defendant in putting It m We
have also shown Judgment cannot he rendered upon
IN frivolous unless u ~ - clearly oaI ~ 70
require argument 10 satisfy the Court upon me SUP
cct Yet to establish these two conclusions Judge Rose
kras writes opinion long as he has ever written on
the most difficult and complicated case submitted 20
him. Indeed, so fu rs we can ascertain, uls II tho
longest opinion ever written By the Judge in Biz lie
Nor docs be appear able arrive 40 the conclusion that
the answer sham, without considering, for the pnT
law which although he finally expresses a very decided
opinion upon them, he practically admits 10 Dee difficult
der to arrive 1T this conclusion, the Judge was obliged
TO 90 outside the afdavs in the case to assume the ex
lstence OF numerous circumstances concerning which
there not ntmatOn IN the papers, and 10 dre-
gard much Of which there was positive and uncontra
The cornerttcuc Of Judge Roscrans's decision Is
rought by John B. Peck against the Ere Railway Com;
pany We have already shown that this opinion decided
and could decide, nothing further than tat INC as@ef
in that action was insufficient and the statement OF tlat
answer set forth IN judge ioseLIanss Opinion palny
shows that il did not deny the cXstence net eafhngs
sufficient TO pay the dividend This would sufficiently
account il should seem, for tie failure OF the defendants
10 press appeal from that ORDER although IN saying
that 10 appeal was taken from il, Judge ekrans com
hat eilset and the fact being directly the contrary
This not Of much importance except ior the purpose
The Judge next crtcises the amended answer put in
in the Peek suit calls it eyaye and sham, and says that
the acceptance Of such answer by Pecks attorney
satisfies him that the preceding IN that suit were COZ
.iye and fraudulent Yet. when he made this decision
he had before him evidence produced by Mr.. Thompson
himself that a similar answer had been accepted in
another s1t by NJ. Thompson, without any question,
and that upon II lie had 10 ral. II would follow
| therefore, that Nh Thomlsons Sut Is cohnsVG ana
fraudulent Passing then TO the reference, the Judge
objects to tie evidence produced upon 1t, as insufficient
and uDsatsfa1toIy ana as rs tat 10 appncaa9h was
made for Adjournment 10 supply the defect IN the ev
dence. This, again, Is imagAary 10 Syq:hee being De-
fore him upon the suDJec; Dut since ne mas "SseIled ~
fact what is simply an inference, there can be no lm
propIiety our stating that an adjournment rGS had
81 the request of the p9nth rom day to day 10 enaSo
him obtain further evidence, but that he was unable
Tor the yinacaton Of the referee IN that case who
then OF the most eminent members Of the bar and s
now one OF The most Judges IN the state that IN
the suit brought by John and khOdG nOmI SON. for the
dividend OF l5S being the same period Covered ~ me
Peck suit, and which conducted by the same attar-
nry wi'o ifSTe lave been repested adionrTenfs
an at the Of the plaintiffs extending from June
o. 1870 the trial n"mnaly opened to Feb ~
and not%tlstandlne the paintins in that action
| have had the benefit OF discovery OF DOCKS
duce Single witness to put in particle Of evidence
tending 10 show what were the net earnings OF Tue Com
pany IN 1863 except ne pr0et 4ss II the ItcA sut II
self and account furnished by the Company shbsan-
tiy like that produced upon the trial OF the Peek sut
before Judge Robinson put containing laise "u,itl"ti
items OF Xpenses And the fact is that up to THIS dy
the only judgment when ds Deel oDal,ie9 oelt ,
Company, with regard TO preferred STOCK u."ous OI
1868 ana the only il statement aud explanation OF the
transactions OF tho Company IN that sar which have
been obtained m an, SUIT are 9ae Wiz, VIZ itt
in Peek suit, and ts not"lthstanlhg every elny
has given 10 the adverse counsel IN sery . upon
tie preferred stock and though the couue Tor the Com
lany have pressed on the tal and offered every easOh
'JIdeo Roselrans makes another assumption wholly
unwarranted By the facts, when he ass s that tie de-
cision Of Judge Ingraham was carefully ept nom tno
Referees knowledge ana that ne was aHoMSI 10 ,o t
the evidence Of this cOlCeanent l. found IN Tie a't ts
1rIs ,d 20 i'm The sIi What sort OF Judgment roll
would 81 be which should include the Original u sfe ma
nJment rendered thereon after the answer had been
amended ana new issue foInedI F0-Sif oHSh JaSg-
ment rolls may be- known In the Fourth ehI Di'1c'
thonyh Ne doubt IT, Certainly they nos known any
hys cs Fnrthcr evidence he says, 10 be found IN
fine fact that the Referee decided he case IN OitCl pp
fU Ce I IN decision was distinctly brought
to the notice OF the Referee, ana ,slISohggyy
urged upon lin Icy the counsel Tor Nh le'h pas
the moment that the original aiA'Wtr "is sio" t "a
Judge Robinson. he decide that tie omission OF any &c
NAL OF net earnings IN th.l aSN.t W., , ION a;
upon which DE should have made the anne 90
Judge mgraham, and which alone, ia Y Oplou, w
the foundation OF that decision. ne Nh,IeloIS ~ ~,
Vitbout recurring any Argument that the opinion q,
Judge Ingraham hal no bearing u3n the is'ies ~
before him. These Facts SHOW lhtl nc - -, nm
JudAe Roselraus unloundcd AMI arse llol ~ @t
favorable impressions wleh ne apc m 20 uol' 80.
ANA which are strong that he cannot tsil!u from 90,
ing an hnplt ID censure upon the dt4ehd-A's a'"-"'''
'i nj Rossrans next attacks tie injunction obtained
I'm the suit OK Gould and Lane U.-4n,t lAoMp'uh "Nu
,nt IN sustain H." We Ilyealresdy discussed tbs
Injunction at some length, and shown tLat IL hau '.lo
Toy cT,1f IS TO he lii dies by whom the suit should
be- brought ana that 10 had, 80 bts. ~ lupHyl 80
lion uf n Judgment OI the supreme Copt ia "a Pl,'oC
case a 10 it frame in respect t0 parties. The lpUAo
ton stood Tor six months "4tioNt any $3.50 -, y
yss made tie decision was reserved Tor more than
twenty DAYS Further on In bis opinion tAS JHu,N ~
as well AS fraud OF this there wa not paFt,e q.
dcuce, aud tns, again, H. mere M rene "a, M Id
motion paper8 IN tis case, or upon the mo, ih
Judge Bogrouau To dissolve tAc Injunction l.I ~ -
,isiou namely from Dec. IA, 1883, o. Iar 10 IsV i,
iHa5 t1 li3r s - ,nH dSut ,I I'm d,ymg it he ala
not pass the sill hcst ccn.ge, express implied upon
Any s "i' are Sit tr,V obcd to defend this injunction
uasmuch not ohtained by the ErI ra@Sa
Complain OF ny any OF ,1 1Ss reety or Indirectly
r. Mas rlred M ir coHn cl ~ high standing. an5
it m ilsse in them t.t We yindcato tae pioprlg =,
thelr action ItWil however. he observed tSI JuS
@ S create the impression that The counsel
Tor thc Ere Railway company IN u'i' S''' Wv
, RO,rns tyi reviews the proceedings ia U ne
spit l.ought hy James THOMPSON ne a. In mo
MI, .ut "subs,antlaly' is very indefinite "V'U'