The Birmingham age-herald., 1902-10-30
DAMRoscH DEFENDS HERBERT.
Declares Passages from Operas are Not Like Those of Old Masters. :.

From the New York Tribune.
 The trial of the suit of Victor Herbert against "The Musical Courier" for dam ages for libel was resumed before Justice Truax, in the supreme court, yesterday, with Signor Vianese in the witness chair. He said he had not had regular en- gagement as conductor since 1899, but was engaged in making the American people fit to go to Europe to prove that there is some artistic merit here."
 Asked if originality in composition con- sisted in the original development of a theme, he said:
 ''What a pity that I talk with a per- son that does not unstand music! If you could talk musically I could understand you"
 Page 30 of 'The Idols Eye" ne said, was like a passage in Carmen"
 Have you the music here?" counsel asked.
 T have 1t here" the signor answered, tapping his forehead with his forefinger.
 'Is the music the same?"
 "Disguised,p he answered.
 'Well disguised?"
 Mo-
 Buzzi Peccia, a professor of the New York Musical college. said "The Singing Girl' was what was called in Italy ev- erybody's musc;' that it was like im- provisation at a piano-ten bars of march, ten bars of waltz, without deyel- opment of any kind. "The Fortune Teller he said was similar
 Alfred J. Goodrich, who said he was a musical author and professor, declared that ''The Idols Eye" was not original He said he had examined "The Idols Eve" and "The Wizard of the Nile" Ia half an hour, and had found No. l, Act Il, ''The Wizard of the Nile'' was note by
 Y4..4I, .1,n11 The motive, notes and key were the same
 Waiter Damrosch, who qualified as an expert, testified for the plaintiff in re- buttal. Handed the passages which some of his predecessors had declared similar to older works. he said that they were not alike Of the serenade by Herbert and Grace O'Moore, he said that both were waltzes, and that that was the only point in which they were similar. A waltz is a waltz" he said, land because of that fact the composers of waltzs are bound by certain definite limitations, which must make necessary some hKe points in their compositions
 "Is there anything in the music or Her hert that is peculiar to the man himselfYf
 Most assuredly. All his work is dis tinctly Herbertan, and IS so recoSnizeu by musicians generally
 Regarding the alleged similarity be- tween page 43 of the The Sihgins Giri and ''The Palms" he said:
 .'They are alike in so far as the intro auction to the theme is the same in both cases. It is as though two anchors began stories 'once upon a time. Sucn com narisons as have been made between the second bar of Herbert and the first bar of 'The Palms amount to nothing, and do not reflect on the originality Of the composer in the slightest degree" Of the similarity of page 147 of The Wizard of the Nile' and the Waidteufel waltz, he said:
 "The first few notes are similar, and in the repetition of the introduction this similarity is naturally repeated. To say that this constitutes copying Is absurd and nonsensical. Such criticism does not amount to anything. Exactly the same construction of notes was. used in Moz- arts Requiem and Handels Joseph