The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-03-04

whether the decision at General Term in the
Tweed case was binding at Special Term in the
present suit against inRersoll
ARGUMENT OF MR.. ROOT.
Mr. koot opened the argument on behalf OF In
gersoli, ana ms argument, long and ably drawn
out occupied several hours. Alter giving a history
OF the ntgation he urged as GROUNDS oil demurrer.
action against the defendant second GSe non,
| Jolnder OF defendant, and, third, misjoinder OF
c.uses: In the elaboration OF his argument he IN,
SIS eu that the Judgment OF the General Term OF
the Third Department in the matter OF the Tweed
demurrer was not determination OF the people 8
urged, was for the first time now presented to a
Co . LOT It's decision. failure to show cause OF
only be ground OF demurrer by Ingeisol himself.
u could not be made ground OF objection to me
delivered opinions in fav0r OF that Judgment con-
sidered and discussed the question Of the people Is
right OF action solely with reference to the
altogether ignored any questions as to
lngersoll, and any expression OF opinion as
from the expressions above cited, from the notices
OF the cases relied on and the general line OF argn-
ment in these opinions that the lair inference to
murrer than against 1t. His second point was that
the Judgment OF the General Term Of the Third De-
partment In this case Is not now binding as an ad-
Indication, nor is it authority upon any question
whatever In the case. This position. it was urged
learned Justices who ordered that judgment, audit
is one which this defendant has right to take and
| support, as We purpose doing in his BEHALF by
showing that that decision has been since
substantially overruled, that the essential and
not now exist, and that the authorities which.
upon those grounds, were then held inapplicable
to the case are now controlling He insisted FUR
eys, us stated in the two complaints as they now
stand, are the same. There are no. c0ntradic-
which admitted Dy demurrer dinerentiate the ap-
rlicatlon of the law. Such suggestions as to the
right to recover as vary In the two complaints are
but conclusions OF law, which cannot control the
Court and are governed by the facts from winch
the peaders draw them After h at
third point which was that the allegation OF COL
fusion, which Judge Potter regards as reason
why the people can maintain this action, no longer
exists, because that allegation has been stricken
out OF the complaint. Ills fourth point was that
the idea that some duty rests upon the State from
the fact that the wrong complained of is alleged
to have been done by appOntees and agents OF the
We%bt - with 1eat OF judge Potter by Judge DAVIS
on the trial of Mr. Tweed Tor misdemeanor and
his fifth point, that the decision In the supervisors
suit against Tweed not only destroys the opinion
OF Judge Potter. but 1t establishes principle
utterly irreconclable with the conclusions reached
in effect overrules that deciso on, regardless of
the grounds on which 1t is based, because
also recover it into its treasury ry: Having Having
alluded to the decision Of the General Term in the
against the Albany and Susquehanna Railroad
Company. In his eighth point he insisted that
since the decision upon the demurrer OF Tweed did
not include decision as TO the right OF action
against this defendant, either in Its terms or in
the contemplation of the Judges by whom it was
rendered, and since that decision has been dis
credited, the reasoning which led to 1t reuted, and
the foundation on which 1t stood demolished by
ought not to extend either Its terms reason
ing to this defendant, but should follow the clear
and overwhelming weight of authority and of
reason, and sustain this demurrer, because the
complaint SHOWS no right of action against lnger-
soil. His next point was That this demurrer must
be sustained, because the Board OF Supervisors OF
the county oil New York are a necessary
party defendant to the complaint as against
Ingersoll. His remaining points were that II the
General Term in this were right in holding
that the county need not be party to the COM
plant, then it follows as necessary consequence
that either the Comptroller or county Treasurer
must be made defendant, and that the causes Of
action alleged against Tweed and those alleged
against IngersOll are entirely distinct and i'm
properly united.
Mr.. Charles O'COnOr rose to reply; but much
time had been consumed by Mr.. Root-it being
after three O'Clock when the latter concluded his
to get through the preface OF his argument. He
began with reciting the proceedings thus far in
the "Ring' suits since their commencement
the interposition of the present demurrer he
claimed that the Special Term should be guided by
the order gwen In the General Term in the Tweed
case. Instead of each successive defendant put
| ting in demurrer he insisted that the proper
answer and go to trial upon the merits.
Judge Harden said that IL was claimed that there
was a discrimination between the two suits.
Mr. O'C0nOr said that on the one point, whether
the people OF the State or the county should prose-
cute, there was no discrimination, but simply on
the question OF misjOinder
Mr.. stoughton remarked that the suit against
Tweed was one against pubic officer, which was
not the ease with the present suit.
MIR. 0'ConOr, continuing. said that ar all events it
MAS very easy TO simplify the whole matter
me presen. case Ma onis an illustration VI the
ola and customary mode OF deiehe- l1.eerPosfts
tial ground of defence. He proposed TO Supply mryt
his argument, AS Judge story once said, the Conat
must be presumed to know something aGs fla no.
TO the act of the Legislature appointing the Board
fAudt, who were TO constitute this Board the ma
ture Of It's duties and how far payment OF claims
audited by II was to be made by money obtained
upon city bonds specially issued by the Comp
tr14ler for this purpose He next called
the complaint; how the Board did not audit the
bills but directed Mr. Watson, County Auditor, to
do it, and send the same to them for their sigma.
lures, ans now upon irregular aud Illegal ccrtiH.
Gates, $4,000, 900 were paid to Mr.. IngersOl These
ceruhcates, as set forth in the complaint were not
founded on actual liabilities, but on a fraudulent
conspiracy. 1t was unnecessary to argue that
each of the guilty parties was responsible for the
whole amount. TN, me State was now suing to get
solved itself into This, What was the nature
nature Of the Srong and vita whom lay the power
rea remedy the wrong' win the though
not lie; neither did the remedy lay with the
Mayor. Aldermen and Oommonalty Of the city,
or with the Board of Supervisors. No such vested
authority lay with either of these local organza-
tons These boards were simply local organizations
created lOr certain purposes OF the city govern
ment- Obviously the real and proper prosecutor
| was the state, and particularly in the absence OF
any SPECIFIC law pointing out any other entity as
the rightiul suitor in such cases This was the
whole conception OF the case and rightly the argu-
ment should end here. He began by defining the
powers OF the Board OF supervisors and proceeded
as far as TO state that were the money in question
paid to them 1t would puzzle the members as much
as 1t would Philadelphia lawyer to know what to
do with 1t, when, 1t being four O'clock the Cont
adjourned till halfpast ten o'clock this morning
when Mr.. OConor will resume his argument