The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-11
CANAL SUITS
DEFENDANTS POINTS IN THE NOTION ron =
XoN-sUrT.

DGFhnDANIS roiSIb IN TIE MOTION 1U8 -
Sox-sUrr.
ALBANY, N. Y, May 10. ls76
In tho canal suit to-day Judge wcstbrook stated h0
had learned that decision had been made Il The
General Term in tho case OF the people against
Stephens Gale. Suggestions then discussed in.
formally TO dispose OF the case in such way that 10
would not come back from the General Term for r..
trial, and the propricy Of submitting tho two prnet.
pal questions Of fact to tho conspiracy and dama~
Cos and OF the directing special verdict IN
findings OF tho remaining facts; but decision vas
arrived st
Mr. Renger, OF counsel FOR the defence then pro-
cccdcd 70 argue the motion for non-sut making the
following points,
Fsrst-That there was no evidence in tho case a.
against all any OF the defendants upon which vcr-
dict may be rendered for damages IN the case.
Second-That the fraud alleged 10 The complaint
namely, the combination TO induce the State 10 cntcP
into contract with william c. stephens Is entirely un~
proved and the reverse Us armativey established BY
the evidence offered In behalf OF the State.
ra'ri-Iha' the plaintiffs in entering into tho con.
Of the damage not deceived but entered into tho
contract with the full ledge nj the time OF IL exo-
cnton OF all the facts and circumstances as has been
proved aud adduccd in this trial.
fouyfh-That the plaintiffs afer the discovery oe
the alleged fraud have only required the continued
performance OF the contract IN question by the de-
PENDANT, but repeatedly ralncd and confirmed the
same not only by the Affirmative act Of their officers
by successive acts of legislation
FVn-That moneys voluntarily paid upon con-
tract or claim Of character, with the knowledge
Of tho facts VIII CHI nvadaic the the cain
cannot Tor be recovered back by tho party
paying such money.
Mrth-That on tho acceptance OF work and labor and
the acceptance OF materials agreed 10 he furnished,
without objection aud payment therefor which Is dono
and performed ana delivered under existing con-
tract no action lies behalf OF the PARTY receiving
the work and labor the materials which have been
furnished account Of any defect In the work de-
feet tho material reference To the performance
Of tho work ana labor the delivery OF the materials
In the performance OF such executory contract
.Serenh-That no action upon the case, as II was
formerly called we'll action upon the contract
for avoidablo damages, will lc that Is such damagcs
as accrue from tho breach OF a contract or from
wrongful Of the party which can be avoided on tho
part OF tho party receiving such damages cannot be
covered or be subject OF action
Eighth-That the former judgment IN tho case be-
and William c. stephens ct aL defendants is ajud-
case and bar 10 any subsequent action the part
OF the plaintiffs against thus defendant or others con-
ncc,cd with him IN interest.
NinM-That the judgment roll produced on TINT oc-
cason shows adjudication Of the supreme Court at
the general term. we'll as the Judgment OF the Court
or Appeals that the Of action described In that
complaint has been settled hy the people. and that
having taken a remission or the costs to which The do
PENDANTS entitled they have received satisfaction
the wrong complained OF In this action, and having
received from OF tho JOINT parties no action will
lie the other parties connected with them IN
the commission Of the wrong