New-York tribune., 1879-03-25
TILE CO[RIiE.
patTY VOic.
At $50 =. u. aljCurned.

A VICTORY FOR The GILBERT ROAD.
JUDGE FRIEDMAN DIsNtIe sEs THE &i,000.000 SUIT
BROUGHT BY THE NLw-ENGLAED IRON COM
PAN6.
The motion of the defendants for q dis
missal of the complaint in the suit Of the New-Engand
Iron Company against the Gilbert Elevated Railroad
Company 90 recover $4,O00.000 granted by Judge
Freedman yesterday in the Superior Court. The cOun
sci WHO have been conducting the present
when he decision was read by the Court; cx-Judgcs
Porter ana Green and G. r. L)wery appearing for the
Defendants exJudge Fithian and cx-RecOrder Smith
fou the plaintiffs Judge Freedman, before giving his
final decision dismssing the complaint, reviews the sew
eral points by both des when the argument was
had The contract of the plaintiff with the
defendant for the construction OF the metropolitan Ele
vated Railway provided that $735.0O0 mile 70 DO
paid or tie ou-work and $4,000 additional for every
tuIn The claim by the defendants that the president
cid not have authority si2n the contract and that
therefore, it never properly executed. was over
ruled by Judge Freedman so also was the point that
the contract was Incomplete because no plans and
spec acaOns we're annexed The Court also holds that
an assignment IF the contract trustees r the benefit
of creditors by the plaintiffs without notice 10 the de-
cadaIts lid rescnd the contract, unless the plain
ts disqualified themselves by some further acts from
the performance Of the contract. The claim was made
that the company did disquafy itself by allow
ns is property to be sold, and maintained nominal
existence only for tie purpose Of lqudation Judge
Freedman discusses tins question at length lie SAYS:
"At the inc OF the execution of the contract the Gil
bert Company was actively engaged Ia neg3ia'l3h 10
eecurc the capital necessary Tor the construction {" inc
road and whiic on the one hand 1t reserved Je op'on
to designate the tine at when aud the secilOn on
which the work should be begun IN the fuufe IL also
reserved the power to give almost immediate notice.
Eoh parties evidently eAPGcted Ihat tne nTTUnat'Ddd d
W. k,y mar iir1e was becou,Ing precious in
view OF the statutory limit hpposed upon the charter
stoo me Toad 6ad TO be butt or abandoned Hence
tup rio
designate not only the tIGe for and place oi the aea
Cucemeut Of the work. but also noufy 10 Tie
NeW England Iron Company ILL advance OF suc dcsgna-
ton to make certain Preparations for the commence
mont Of The aciual work and he0ce the obligation
the receipt Of such nOcn or designation to proceed to
work immediately a. req esiet ana 10 accomplish Ger,
tIn results within certain specified times In view oil
this obi CATION assumed by the Ne"Lnsland Iron Com
pany, the defendants agreed 10 pay liberal pilee'
Cpon Plaintiffs own showing 1t was an enormous one'
promising large profits TO that company, Now tue IN
ference arising from all TINS IS ana an .he iictS alu
circns IN the cOrrobor1e IT, mat the New
England iron Company selected for this purpose on
fcr trs peculiar kind Of wofk, ana the fair and
reasonable construction OF tie contract must 9 %
bert Company thc Ncw-Eugland Iron Company under:
took to preserve ability III th- respect ana TO hold
itself constant readiness subject 20 the call ~ tne
Gilbert Company TO enter upon tIe performance OF the
work pursuant 10 tie terms Of the contract"
Tho court discussed at lehglh tle Question "hetber
tine NcvI.u giaud from Company preserved tue requisite
ability. TAe Judge held thai the company manifested
lis inability TO perform the c3htrscl % lIs own eo
rate at;s Nor does be thlnk that the company shOud
corporate acts by oral testimony presented upon lhe
trial JLdge Freedman concludes a Follows " III ah
cgyrccf In these views, follows that IL cOnclsNey
apprars by The Tel0rt Of thO New-EngaDd Iron Com,
plnv tlat since October 1873. and during lsI ana
i3-j IL was rot ready and able. though II may nave
D,su wiling. 10 perform tic contract and hence the
Contract made II $40 between tie GID ~ ColpdIy
and tHC New. York Loan and Improvement Company dd
not constitute breach for which the plaintiff can mann
tain action The complaint must be dismissed with
costs
Permission was given TO the plaintiff for the purpose
OF appeal 10 put IN additional evidence TINS morning On
tue question OF the plaintiffs Insolvency.