Year: 1868

try &C. Is therefore not preudieed by IT, and therefore
issue was immaterai and he cannot appeal from the
order the ground that the Judge refused TO frame
any other issues because he has not any legal right to
have any of the issues tried by auy After citing yar
ous authorities in support of these opinions
his honor states In reference to the views which
Influenced him in settling the that the complaint
charged fraudulent bargain between Mr. Wood on the
and divers persons then being members Of the Common
Council" on the other f the plaintlh knows VINO the
specified them or he cannot have an framed to send
TO ajury But IL his allegation be true, that the then
Mayor whO with sufficient deniteness Is pointed out
by the averments of the complaint party to the
alleged corrupt agreement then the trial OF an Issue as
the then Mayor and Mr. Wood, would be all suffi-
olent. II that were established whether there were
other parties to II or not would be imateral That


plain simple ISSUE not liable from indefnteness and
generality to msead or confuse jury That issue was
made and that issue therefore he framed because had
his conscience" been satisfied by the evidence and the
verdict OF jury that was true he could have dsre-
hand II that issue were decided adversely to the City, he
thought and still thinks, that In view OF the general
OF the other allegations justice demanded that
tho OF the should be tried before single Justice
IN Special Term where except for some good reason the
law contemplates that equity shall be tried =.


Judge Sutherland dssents on the ground that thu
CATION statement In the complaint OF the alleged cor
rupt aud fraudulent arrangement agreement the ale
cation statement does not aege corrupt and fraudu


lent arrangement or agreement with the then Mayor but
does aege corrupt and fraudulent arrangement and
agreement with divers members OF the Common Council
without naming them. The answer contains general
denial Of all and every Of the allegations OF fraud
in the complaint The order appealed from
Vowed IN connection with the reasons given in
by jury as to fraud in effect to the inquiry
whether there fraudulent and corrupt arrange
mcnt or agreement with the then Mayor must be re.
garded Judicial determination that that issue Of fraud
was In the made by the peadings, and the only
and that the allegation In the complaint as TO corrupt
and fraudulent arrangement or agreement with divers
members of the Common Council, without naming them,
indefinitely stated 10 be regarded put in issue
by the answer in the ease for trial If this is
it follows that the order appealed from should be re-
gardcd not only having introduced into
the case made by the pleadings an mpertinent
SG not made by s i1sI pcadngbat @ aso as having Udny
elected from the made by the peadngs the prnei-
the peadings IL this be 10 DO that the order Is
appealabe Can be that the order does not affect
prejudice the plaintiff True, on the final hearing or
trial OF the the Court may try and determine the
% Tgi Issue OF ,dGs oa ila.n . anu up % ~
or immaterial issue, outside Of the case Bqt does
power TO do this that the plaintiff may not be
materially prejudiced by the orderl He thought
or irrelevant matter stricken from complaint. II he
puts IL in issue by his answer, the Issue may be dis
ing strike ont nevertheless appealabe It may be
eases tried and determined nnenbarrassed and unpreu
diced by mmatcria irrelevant matter or issues; and
this right OF the parties. the regular and convenient
enforcement and protection Of II the allegation the
complaint OF the alleged fraudulent and corrupt arrange
ment agreement should be regarded as an
allegation Of fraudulent and corrupt agreement
with members Of the Common Council and with the then
Mayor. he thought the order would be appealabe, be-
II limits the issue OF fraud corruption 70 be tried
by jury to the inquiry whether there was or was not
corrupt or fraudulent agreement with the Mayor alone
It plain HIM, n the allegation In the complaint was
too indefinite uncertain, I'm onttng 20 specify the
names OF the members OF the Common Council with
whom tho alleged corrupt and fraudulent agreement 10
alleged 70 have been made, that the defendants remedy
either demurrer motion 20 make the allegation
definite aud cortan-probably the latter Tho CON
sdoraons above suggested TO show that the order Is a


peaia6lr show alo. II the order is appeaabe that II
should be reversed