The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-09-21

amend the same as lhey see lit in
this respect, the defendant to pay tbs.
costs of the litigation up TO the pres
ent time. AS to allowances. this is
mot in condition at the present timo
for the court to exercise it's discretion
! and the court therefore declines to
| consider this question but reserves itg
decision until the litigation shall ba
terminated or in such a condition al
| to present it to the discretion of tho
court, and a formal order enbodyinc,
these rulings will be entered.
After this there was continued ar
| gument and Col. f. |. Osborne made
the closing argument before dinner
urging that the court could not dis
miss. but that if it did costs and al
lCwances should be made for clients
! and attorneys fees He put them at +
per cent. on $40 increase on the $780,
| 900 shares, or $27 900 in ALL while
Fleming suggested % per cent or S54.-
900. After dinner eX-Gov. Jarvis made a
strong speech in favor of the motion
to dismiss declaring he had advised
Governor Aycock to refuse the earlier
offers to lease and that the Howland
proposition was the only safe one e.
fe1ed.
The argument was closed by Judge
| Womack who reviewed the ground
and asked that the motion be allowed.
Then it was that Judge Purnell rem
dered his opinion as follows:
Circuit Court of the United States
Eastern District of North Carolina,
| John Z. Cuyler, on behalf of himself
and others, Complainant against
Atlantic & North Carolina Railroad
Company Defendant.
Affidavit.
State of New York
County of New York-ss
John Z .Cuyler, being duly sworn,
deposes and says that he is the COM
plainant in the above entitled suit III
! equity
| That he has been informed and be-
! lieVeS that q meeting of the stock
holders of the Atlantic & North Caro-
lima Railroad Company was held al
] New Bern, North Carolina, on or
about the 1st day of September, 1904
at which time and place the stockhold-
ers voted to lease the road and to ac-
| Cept the proposition of lease made by
r. s. Rowland for and on behalf OF
the Rowland Improvement Company
That at said meeting this .deponent
is informed and believes that his, de-
ponent's stock, to-Wit, Thirty-seVe
shares was voted in favor of said
lease.
That this deponent had no notice
| that such meeting was to be held OF
the object for which it was to be held
! That he never authorized any per-
son or persons for him or on his be-
half to vote his said stock or any part
! thereof, either for or against said
lease.
That he has no information regard
ing the same except as advised by his
| attorney.
That said attorney, as he is inform
Ell and believes derived his informa-
/ ton from the public press.
That he is further advised that upon
| learning that such lease had been exc
cuted on behalf of the officers of the
railroad company and approved by
! the Governor of the State and that a
probable motion would be made in
! pursuance of the order entered nunC
pro tune in this honorable court. his
attorney. Woodville Flemming wrote
to the Clerk of said Court that in case
such motion was made he desired to
! be informed thereof.
That on Tuesday, the 18th day OF
September. 1904 he is informed by
his attorney, he, said attorney, re-
ceived the following telegram:
might Dispatch
Raleigh. North Carolina,
~ Sept II, 1904.
'Woodvlle Flemming,
1920 Broadway, New York.
Motion lodged today. Hearing
20th-10 o'clock forenoon.
81. S. GRANT, Clerk
That apart from said telegram and
! the public press neither deponent nor
his attorney as he is informed, had
any notice of said motion or of the
grounds upon which said motion is
| based.
That this action was brought by de-
ponent on behalf of himself and 9th
ers for the protection Of the rights OF
the stockholders.
! That at the time action was brought
| in this Court the road was represent
ed by the President and other officers
as being in a deplorable condition and
subject at any time to become bank
| rupt. (See report of President of Sep
TENDER LIST, 1903, approved by Direc-
tors).
That at that time as deponent is
informed and believes, the stock was
! held at thirty-fiVe dollars per share
and was not saleable even at that
price.
| That Immediately after this Court
! took possession of the property depon-
ent is informed and believes that the
stock advanced. and. though the prop
erty was in the hands of the court
| only two weeks, yet in that time the
! stock advanced to fifty dollars per
share and was sold at public sale at
| fOTty-eight dollars per share.
That deponent is now advised that
| from siXty-fiVe to seventy-five dollars
per share is offered for the stock and
! that the advantage to the Stockholders
| has been an increase of about 100 per
cent on the market value at the time
action was first instituted in this Hon
orable Court, making a net Increase in
value to the State of more than half
a million dollars.
That this has been accomplished at
considerable outlay and expense and
deponent and others have been unjust
ly and cruelty assailed and their mo-
tive impunged by the public press of
North Carolina, although their action
has resulted in great benefit to the
stockholders of the defendant corpo-
ration.
This deponent now submits that Il
the lease is such as n the opinion of
this Honorable Court will be to the
best interests of all parties and should
be approved by the Court deponent
asks that such an allowance be made
to the plaintiff as viii reasonably COM
pensate the deponent for his damages,
expenses and OUTLAWS, including attor-
neyS fees.
JOHN p. CUYLF;R.
Sworn to before me this I6tn day of
September, 1904