New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1884-05-22
REFEREE DWIGHT ENJOINED
NEW PHASE OF THE MARIE-GARRIsON SUIT
THE REYEREE SAID TO HAVE EXCEEDED HIS AUs
THoRITY-THE CASE NOT IN EQUITY.

| ton OF O. A. Rnnkle and Henry L. Clinton. IL ~
really writ Of prohibition against Theodore w. Dwight
referee Tho writ contains Isl pages OF printed natter
and goes fully into the details OF the Mare-Garrison
.since Professor Dwight appointed referee 10
overued the decisions OF ths
Court OF Appeals and OF General Term OF the Superior
Court this very case that this sui. 10 suit ut la" Tor
damages and not suit Ia equity. by entertaining equity
Jurisdiction and treating suit In equity and at law
also The effect Of the action will be TO foroo stay OK
proceedings until tho Supreme Court shall decide
whether not this Is aeon at law or In equity ana
TO get an that compel the referee TO
try tho properly according to that decision ana to
prohibit him from treating it as equity action Tho
writ operates temporary injunction against the con-
tinung of the su by referee Dwight and accompanying
an order 10 show why 1t should not be made per
manent and Wednesday May IS. is the day set to hear
the argument upon It,
The service Of the writ and affidavit was made. on mo
plaintiffs attorneys Tremain & Tyler, at their offices az
No 1877 Broadway about p. yesterday, and Oh Ee'-
Dwight at O'Clock while he was instracung cdss
in the law school at Columbia College.
II was a complete surprise to the plaintiffs and their
attorneys and counsel and consultations were imDcdi-
atey held the various offices OF the parties Interested
Roscoe COnkling said 10 TRIBUNE reporter that nc had
not time the papers and could say noth
ing about them and referred tae reporter to Mason W
Tyler Mr. Tyler was found at his Office and said Ycs.
have been served with the writ Of prohibition and have
through il, but can hardly say that nave read W.
II Is the most anomalous proceeding ever heard o. IL
is stay OF proceedings and is intended simply a. .
tange and for the purpose OF getting the case over Tor
the summer It Is utterly absurd to ~ up such Pro-
ceeding against the referees decision after has been
rendered. There is nothing in IT,"
Tho application was granted the affidavit OF Com
modoc Garrison which l27 and among other
things states that by OF the attorneys for the
parties tine referee allowed compensation al the rate
of 500 per day says the why his counsel
assened to such large compensation was that although
the amount claimed in the complaint large the issues
involved in the acton were few aud siupe and That ia
his opinion the case could be tried ia twelve or hfea
days or twenty days the utmost intending the final
summing vi OF counsel assuming. OF that the ref
would recognize and administer the ordinary rules
OF evidence with accuracy; that the number OF DAYS al
ready occupied in the trial before the referee isoYer
sixty: that it is expected tat the referee all charge At
the rac.-Sl00 per day-for tie time occupied by
writing opinions in the that the referee has
already upon the adnissbillty Of evidence, delivered
one opinion making 100 pages IN prift. another on the
motion Of Mr. Garrson's counsel 70 dismss the COM
plant. making nifty -four pages in print. Suether upon
the adnssibHiiy of evidence. amounting 80 tnrty-uns
pages and fourth, which numbers ten pages IN prints
aud that the charges the referee for compensation ~
the rate OF 200 per day while PREF airing these Opinions
will amount n large
Commodore Garrison advised by his counsel that hs
action upon contract and the issues raised 10y tho
plcadnss substantially whether the contract sea
forth in the complaint made NJ the plaintiff ani
himself whether the contract II made, leal one
if so. whether the plaintiffs fulfilled their obligations
under ths alleged whether he violated tho
same he did whether he Is Liable 10 respond n
damages and if so, to what amount.
The affidavit complains that the referee instead OF con-
filming the evidence the issues raised by the pleadng
permitted the plaintiffs against the objection OF counsel.
TO introduce lag amount 81 evidence raising numerous
collateral issues AMI among them, issues in respect -
the transactions of the directors and officers OF the Pac
lie Railroad of Missouri and the transactions Of the drec
tors and officers the Atlantic and Pacific Railroad OF
Missouri this calculated to operate to
the injury of Mr. GarrisOns rights and to prejudice tas
mind Of the referee against him and in of the plain
tls II is charged that the Ostenble purpose for adj
uniting this evidence to show that tho plaintiffs had
reasonable probable grounds which they might. in
good faith, have defended tie foreclosure suit upon the
third mortgage given TO secure sde Of bonds amounts
ing in tie aggregate - 100000; and tor the purpose
OF showing mlsmanagemont NATURALIZATION, bad
faith and fraud tie part Of the directors and managers
OF these two roads The referee gave the plaintiff -
alleged, the latitude about the Latitude
If he hal been trying tue foreclosure suit OF $0O00o0
OF bonds above referred to. The affidavit proceeds 20
the which the referee permitted the ain
ts give evidence in respect TO the conduct OF the di
rectors and of these reads extending
period OF several years before the foreclosure tho
Orgage out of which the present suit arises and says
that the effect the referees rulings 20 upon
him GARRISON the burden OF proving that the business
OF these two roads for BEFORE the foreclosure
ay conducted that its officers and managers
eroised prudence skill and fidelity in the discharge OF
their respective duties and that the financial condition Of
these roads -Ood could DO expected with
prudent management. This 1t Is claimed was unjuss
and illegal Mr.. Garrison not an officer or dec-
stakeholder Of either OF those roads and hal
interest whatever in them.
By going into all these collateral issues TO ahe prcd-
dee Of Mr. Garrison ii claimed that the referee Teno
contrary the decision OF the Court OF Appe as ia the
same when TINT court upon the demurrer t9 tao
plant stated The complaint does not aucge that
the third mortgage bonds IN fact fraudulent. 10
alleges that they OF doubtful validity and then pro-
ceeds to specify various particulars ia reference which
1t was claimed that they invalid before stated.
alleged that Garrison party to the fraud,
II any existed in tue issuing of the bonds that the
company did not receive their full value that they
given TO valid debt; nor does it appear
that the mortgage debt could lot have been enforced IN
equity against the property 81 the company"
The affidavit further declares that the effect of the adj
mission of such large amount or evidence Tor the pur
pose showing the directors. oces and managers
OF the Pacific Railroad and the Atlantic aud Pacific Rail-
road OF Missouri guilty egigcuce mi-aduhHis-
tiation. fraud and dishonesty 10 prejudice Mr.
GarrisOn before the referee account OF acts and
conduct Of those for whom he was In no way responsive,
and whose acts conduct and declarations were nadmIs-
sibe ia evidence against HIM lie says that the r1ng.
of the referee on the cross examinations OF tne pLuhus
witnesses made it difficult II not impossible TO febt or
dsproye differences of fraud ggeDCe and maaduin-
lstat0n on the part OF Tue OuoeIs OF theSt TWO Ioa,
though there ground IN act for the inpiiauDns
them, states various instances III icn IL
is claimed Overrued questions put
examinations calculated rebnt the differences OF fraud
and NAL administration. The following Is extract
from the affidavit As am advised by my counsel,
after having permitted the plaintiffs, sgainst objection
behalf. to give great quantity OF evidence Tor tho
purpose Of establishing large number oi collateral
relating TO mismanageBet and frnd On the pare
OF the officers and Of the Pacific Railroad and
the Atlantic and Pacific Railroad; and after having by
his rulings during tina animation OF plaintiffs
witnesses made il difficult, IL impossible although
there real grounds for tn differences. 10 dis
prove rebut the differences OF Encouragement mall
md fran Oh %
evidence referee seemed disposed to exclude test-
mouy Oh my behalf defendant In said action, coming
within the issues involved Ia this case and wnich are