The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-12
CANAL SUITS.
ARGUMENT OF COUNSEL ron THE PEOPLE
AGAINST EoNsUTT.

ARGUMENT OF COUNSEL FOR THE PEOPLE
AGAINST NoNsUIT.
ALBANY, May IL, 1915
In the canal SUIT to-day Mr.. Hale Of counsel for the
people, occupied tho attention OF the Court argu-
ment against th emotion for nonsuit nearly the en-
tire session.
In the OF his argument counsel referred to the
laws of 1854 creating the Contracting Board aud the
laws of 1857 comforting additional powers upon the
Board and maintained that uuder these aud other
acts cited there power vested in the Board to
annul contract obtained through fraud. They were
given power to accept surrender or contracts but
there nothing IN the statutes which gave them
power TO annul and the latter act which provided for
the resembling and surrender OF contracts could
Affect the right OF action to damages in this
case, where the defendants had become liable by
OF wrongful act committed In December, 1866. There
had been waiver Of right OF action and II could
only have been waived released by the passage OF
law by the Legislature to the provisions OF
the constitution Counsel cited numerous authorities
TO sustain his argument that there had been waiver
release OF OF action the part OF the State
or Of ITS officers, and claimed that the only manner in
which such waiver release could have been obtained
was By the passage Of act expressing explicitly
its title tho fact its being to release Thomas Gale
and others from liability. Neither did the Publications
airmance OF the contract in question destroy the
right OF action for there was not particle Of evidence
adduccd showing that prior to the first payment in
January 1867 there was any knowledge on the part Of
the State its officers of fraud
In regard to the sixth proposition, the counsel
claimed IL had application TO this case but was
merely repetition OF tho point made the rati1ca-
ton the contract and by the authorities
previously cited
The seventh proposition In relation TO avodablc
damages also did not arise this case and II had
any application 1t was met by the authorities already
adduced
The counsel then discussed length the eighth and
ninth propositions That the judgment In the previous
action acted as bar TO recovery in this That
judgment did not specify the grounds upon which it
granted. and IL may have been upon
grounds This fatal TO its effects as an cstoppel
The evidence introduced In relation thereto did not
show the grounds, nor could parol testimony DO intro
duced, the judges mind be gone into 10 ascertain
what the point was Even IL tho judgment did act
estoppel Stephens and Gale the only parties
who could avail themselves Of IT. Of the remain
Ing parties could avail themselves Of this judgment
an estoppel when they not IN interest that
case. neither could the waiver OF the right 10 appeal
from the order entered in ofthe People against
stephens and Gale be considered a settlement
lease.
Counsel In conclusion, argued that tha grounds upon
which tho motion was made we're uu.>-~s' sand un-
sound. shown in tho authorities ottsd, and II It
should be granted and The higher courts dssiie
improperly then all that had been done IA the
would be lost He asked the Court TO deny the notion
unless satisfied beyond reasonable doubt that the
questions involved would in other suits TO be
tried. and which should DO decided against the
people without grave consideration.
Mr.. Hale was followed by Mr.. Hscock, counsel for
the Defence in behalf OF the motion, taking up first the
proposition that the judgment In the first
bar in the present suit He then reviewed tho authori
ties cited by Mr.. Hale In support of hts argument