Year: 1869

In the case of jerks agt. The New York Gem
trail Railroad Company motion was made by Mr. Van
derblts attorney. Mr. Farchld vacae an order for
the examination Of Mr. Cornelius Vanderbilt default Of
his making affidavit TO the issue of the per cent
dividend which has been advertised


Mr. VanderDilts affidavit is to the effect that Sar
day evening Nhe last OF DecembeD about O'clock some
person unknown to deponent, who gave MS name Mr.
Ensign called him at the Manhattan Club In this city
where this deponent then engaged that said person
stated that he wished depOnent 10 make an affidavit an
Injunction case IN which the NewYOrk Central Railroad
Company interesed that dep0nent told said person
that the abOs Of the day that he shOud
bother himself about any affidavit which was true 81 any
time after that night that said person did
not present affidavit TO deponcnt for
his signature, did he inform depOnept that he had in
attendance any Commissioner or any other person an


horzed administer an OATH nor was there any one in
Company with this person; deponen further saith that
he did not refuse otherwise than as herein stated TO
make any affidavit and that the foregoing is correct
statement Of all that ranspired between the person
calling himself Ensign. Deponent further saith that az
a copy OF subpoena 10 attend OF the same afternoon TO
make his deposition before A. Redheld Referee; that
it being nconyenent for him To leave the business IN
which he was then engaged he sent "a note TO
Mr. Redfeld saying that he was willing to mako
his Opposition but could not come at that time.
Mr. Edward Ensign's affidavit read in opposition in
which he says: " am the same person who requested
Cornelius Vanderbilt 10 make an affidavit herein on SAT-
urday last, and who subscribed the affidavit 10 said
request dated JAN 1862 the facts stated in which said
affidavit believe to be true. When I requested Mr..
Vanderbilt 10 make an affidavit touching what he knew
about the OF OF Interest certificates OF the New YORK
Central Railroad Company, / was prepared to
draw his affidavit If he had consented, being
myself an attorney and counseor-at-aw and hay-
ing. as / understood, notary public wlthin
short distance In readiness to administer the oath Be-
Sides L could have found within few minutes any
OF several nOtaries and would have done so The
precise language used between said Vanderbilt and
myself follows: Mr.. Vanderbilt have called 10
request you TO make affidavit to be used on the
motions Tor an injunction against the y. u Central IN
Mr. Jcnks suit OF what you know IN regard 10 the issue
Of interest certificates by the Road" His reply was
" II you call al office on Monday morning, SIR VIII
talk you about It," lrepied, You must excuse me.
Sir bIt the matter pressing, and desire an immediate
answer the answer Is to be used at once, and Monday
morning won't do" He then sad: Il refuse 10 make
any affidavit tonight, Sir" when bowed and said:
am sorry you will not accommodate me-" He replied
This is all that occurred said Vanderbilt did not say
that was would be ready or willing 0 give an ai
davit at any other time. his manner decided and
understood his refusal to be absolute.


Mr.. Farchild argued that there no refusal OF an
affidavit attempt TO conceal the facts, but merely
refusal do anything out Of the ordinary hours He fur
ther argued that the statute required the esenent OK
an affidavit already drawn.


Mr. Field argued that the provisions OF the Code not
only form but in substance had been violated ana at
Mr Vanderbilt had by his hostile action submitted ln-
self under the Code to examination.


Mr. Justice Ingraham held that the code dd not con-
template the application for affidavit at an ureason-
able hour though he did not think that II was necessary
that any formal affidavit should have been prepared
Under the circumstances disclosed by the aidaNs no
did think any refusal the part Of Mr. NaiderDls
had been made out and, therefore. granted ms m0tlon
The in the were postponed 10 fHuay
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