The New York herald., 1876-11-28

fact Il was tainted with fraud in its inception, both
before the Grand Jury and The civil courS Mr. Dsv
lin, through his COUNSEL Messrs. Joseph Marin and
Timoihy {. cronin commenced suit against the city
recover the amonnt due him. The sent he
fore referee and resulted in 1870 in judgment in
plaintiffs favor for sio0.o0c From This judgment
sn appeal was taken to the General Yerm OF
the Court o. Common Peas. ON bthaf OF
The city. and there The original ju iement
Mas reversed on tho ground tnat tho nc rnce- winch
the contract had been made was unconstitutional and
the contract itself unassignable. From this decision
the plaintiff took an appeal to the Court OF Appeals
where the act held to bo constitutional and hc con-
tract assgnablc and rendered reversing that
o. the Common Pleas. General Term, on thosa two
points but also reversed the original judgnielt be-
OF error IN the admission OF one item Of eyi-
dence. motion then made Oh behalf OF the city
to have the cause restored 70 tho general calendar
VII irh motion was denied at Special Term. From this
dcesicn appeal taken the part OF the city TO
the Genera! Term, which reversed the decision OF tho
Special Term Plaintiff then appealed to tho Court OF
Appeals. which held that tho order OF tho General
Term Was not appealabie, and must, therefore,
remain force. The General Term then made
without prejudice 10 the rights Of the par
ties, other han tho CITY, 10 an order Of reference
THIS the order applied for yesterday on the part o
piainrl. IN ayor Of which argument was made by
Mcssrs Joseph !. Marin and Timothy G. Cronn and
Corporation Counsel Whitney opposed AiIldav.ts
were submitted on The part OF pla'nsin showing ihe
OF the to Items that II required 200
meetings. and the printed testimony covered
over 2 oc0 pages IL was conceded on behalf OF the
CITY that the was rcicrrabc, but insisted that
owing TO the allegation OF fraud IN the answer III
connection with The obtaining OF the contract it
most proper thai jury should pass upon
the case. The reply of plaintiffs counsel 10 this
that the question OF fraud was mere cry; that
tho allegations ~ relation reio had been thoroughly
heard before Tho former referee, who found against II
that there such an cutre absence 0i proof sub
stantlntng IL, counsel Tor the city did even ask
FOR Andlg upon u; that subsequently, new counsel
retained aud most minute series oil special md
ugs asked for aud obtained, but not even request
was made or supplemental hndins on the question
81 iraud. Counsel further insisted that tho motion
should decided according to the law aud preccicnts,
ana that decision should be made IN favor OF the
CITY such. In conclusion Mr. Whitney asserted that
tho matter within the discretion OF the court and
such discretion should be exercised IN favor OF the city,
Jaage Van Bunl took the papers, rcscrving his dcci
sion on tue motion.
MEMENTO OF WM. c. BARRETT.
TIE peculiar circumstances under when VIM. G.
barrett exchanged tho air Of the Metropolis for foreign
chimes OF necessity will cause the occasional
OF Ms name in glous proceedings before the Courts.
A ia pons up for trial yesterday before
Jndse Van Worst, holding supreme Court speca
the sgt being brought by the Merchants Bank Of
Canada against VIM. q Barrett and Degrasse Living
ston n IS set forth in the complaint that Livingston
deposited with Barrett certificate Tor leo shares
Adams Express Company stock for loan of $4,000,
that Barrett afterwards took THIS stock The PLAIN
posted the stock security. Mr. Livingston claimed
ID. stock. Bank having refused to give up With
cat payment Of the So 600 loaned on H. This suit
hrOa- ht to compel sale oil the stock Tor the rem-
burseinent Of bank The defence is that the stock
belongs Livingston and that he rendered 10 Barrctts
attorney after hs departure the $4,000 originally ad
yanced on the stock. Jrcgc yau Worst took the
pafa res~ hts decision.