The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-29

Another Chapter In the stemm Ie r-Mc-
Guire Cont-oversy-Argume on the
Appeal from the Order Ora nting a New
Trial.
The long drawn out litigation over the Seventh
Jivl District Court Judgeship was supposed TO be
IA Cua,ly closed by the order OF Judge Van Brunt,
srantlng the application OF Judge Mcclure for a
new trial on the ground OF newly discovered evil
dence His opponent, Judge Stemmler was not
satisfied however. TO let the matter rest here and
trust to the chances OF new trial. IN view OF the
character OF the new evidence which 1t was known
would be submitted, but appealed rom the order,
with view, If possible, to having the same set
aside The argument upon this appeal took
place yesterday, In the supreme Courr, General
Term, before Judges DAVIS and Daniels. The
interest shown in the case was evident
from the large crowd present Both the rival
contestants were In attendance, accompanied by
their large array OF respective counsel The argll-
ment occupied nearly the whole day, which, after
all was not so very long time to take consider
ing that the case has been in litigation for over
four years.
MI. Waterbury opened the argument for s,emm.
Ter. He insisted that the afidavit upon which the
new trial ~ asked furnishes only cumulative evil
dence, and that new trial should not pe granted
II the newly discovered evidence only tends to
prove or disprOve facts controverted aI the time.
Ills second point was that new trial VIII not be
granted when the new testimony goes only to iln-
peach the credit Of testimony given or the charac
ter OF witness sworn on the trial, or when the
charactar OF the proposed witness IS bad his hnal
point was that the pretended newly discovered
evidence is not only insufficient to sustain the mo-
ton Tor new trial, but II one were TO be mad 1t
would have no bearing upon the issue TO be tried.
Ex-Judge Beach, in reply Tor Judge Mcclure,
stated that The object OF the appeal was not clearly
perceptibie, 70 counsel on the other side. Upon
the entry Of Judgment In favor OF Mr.. Stemmer
the latter entered into possession OF the ONCE and
upon the writing OF the order setting aside the
Judgment his title fe and Judge Mcclure resumed
the position he mad 50 ABLY and efficiently filed for
more tnan three years An absolute stay would
Judgment upon winch alone it rested was
vacated. No FORM OF stay could oestow any right
upon Mr.. Stemmer. Having no Judgment, he mad
10 color oil title, He then proceeded TO argue that
the order Is not appeaiable. The matter was adj
dressed 10 the discretion Of the Court. In this
case the discretion OF the Court was wisely exer-
cised. Mr.. Stemmier could not fill the Office. II
Judge Mcclure was excluded the office would
have been vacant TO the detnment OF pubic inter
ests.. The anomaly would nave been presented Of
an officer, after three years OF faithful Official SER
vice under clear evidence Of lawful election.
evlcted rom possession upon an order stay.
ing proceedings upon an order He next
discussed the two questions suggested by the
cumulative, and second whether the anidavits
exhibit case OF conspiracy and fraud in obtaining
the Judgment demanding the interference OF the
Court Ho insisted that the evidence is not cumula.
tive. The only material testimony produced by
Judge Mcclure on the trial was documentary. He
rested his title upon his certificate OF election
primarily, but more especially upon the sworn re-
turns OF the original canvassers. II Tor Other
reason che Judgment should have been set aside
as procured by fraud Equity always interferes TO
set ASIDE yerdicts obtained through fraud. AS TO
the confessed perjury or Fields, TINS he claimed OF
itself was abundant cause lOr a new trial. The
court which should uphold Judgment proven TO
have been obtained from it by perjury would
become an accompce in the wrong. 1t is
argued that Fields cannot be believed in his self
Remuneration. Why nOt? And how else could his
perjury be discovered. His affidavit makes it GER
Tain that he IS perjured That fact Is discovered
II his oath now cannot be believed to contradict
his oath, then it does prove that the judgmen:
rested upon fraudulent evidence. In conclusion,
he claimed that aside from the afdavit OF Fields,
other afidavits, as conceded by Judge Van Brunt,
showed the propriety Of granting new trial.
At the conclusion Of the argument, the Court
granted the counsel till the 18th OF next month Tor
the submission OF their briefs.