Year: 1875


the people from Judge Donohues order to furnish
fendant with bill of particulars second by defendant
from that portion Of the order refusing to direct
the complaint DO made definite, and the third
by defendant from Judge Barretts order refusing to
vacae the order Of arrest reduce the S. 600 ball
Judges Davis, Brady and Daniels were on the bench
There was large attendance Of lawyers


Charles o'Conor and Wheeler Il. Peckham repre-
sented tho people, Dudley Field and r S Deyo the
defendant


Mr.. Peckham announced that the plaintiffs
ready In their appeal.


Mr.. Deyo objected that appeal getting any prefer
ence the rules forbid any not appearing the
day calendar be called without the consent OF both
parties The section giving the peoples prefer
ence tho calendar did apply there cal
endar, the session being an adjourned The case
could only be heard in two ways The Governor might
call an extraordinary session Of tho General Term or
the judges themselves might designate certain OF their
number TO hold session Now, these rules expressly
forbid the bringing up OF this case at an adjourned
term, and any counsel who undertook upon con-
OF both Sides to bring up appeal the 23d of
August in any other under these circumstances
would fail If this s forced against remon-
STRANGE II will be violation of the rules and upon
other than that it Is case not to be governed by
rule or law



and he objection, far the jurisdiction of the
Court was concerned, to hearing the appeal


Mr.. Field remarked, with some warmth, that this was
wholly unprecedented calling the in the middle of
the summer at vacation time and while the defendants
senior counsel is absent engagement made months
ago. The rules provide that notice be given for the
first day Of the term from which it follows that you
cannot notice at an adjourned term The Court had
right to override its rules and he respectfully sub.
mitted that they could not take the without do
fcndanta consent The rules made the law Of the
land by the Of 1870 and the Court could nothe
would respectfully urge, he did not want to be vehe-
ment in his Objectionable Court could not force
the argument against the objection of defendants
counsel To do so would bc to make an extraordinary
exception in this case. The newspapers have taken
up the question, and the New YORK HERALD this
ing says 1t remains TO be whether this
be argued and considered like other cases That is an
we ask-to have 1t heard and considered like other
cases This IS all we ask and all we urge No harm
could follow the he contended for The alleged
peculatons took place four years ago. The FIRST suit
fell to the ground and there delay the other
side in bringing the second suit till April Bringing
the against will and against your own
rules Is what we protest against


Judge Daniels said there nothing In the rules
prevent them going with the case; nothing TO pro-
hibt the Court; restriction in the code fhey had
the right 70 extend the trial or adjourn 1t from time to
time.


MT Field said If that the and that the rules
not 10 be observed by the Court then it time
IL
He protested against this being made the first excep
tion 10 the general rule


Mr. Pecknam referred TO the twenty fourth rule of the
code giving power TO notice cases. had been done
in this case


ing been served the parties are not taken by surprise
The Court will hear the argument.


Mr. Field-Excuse me, you have not heard me- There
are two others; when will they be heardH


Judge Davis-After the 1rst one


Mr.. Peckham then commenced his argument setting
forth the cupabilty Of Tweed as a public officer and
hptu tha Artarn afadfo n rnoA
that the order was appealable; that Judge Donohue
erred in making the order because it not much
the plaintiffs claim that ordered TO be set out but
the claims Of Garvey Ingerson &c. giving the parts
which wero false and those parts which were just The
complaint says that not any were just and the order
directs plaintiff TO say what part was fraudulent and
what part was just precedent cannot be found in
the order made by Judge Lawrence in the Mayor VS..
Mariner and Tweed for in that the allegation
that the claims were partly fraudulent All the facts
stated In the complaint TO the acts and dongs OF
Tweed. There are no other allegations to be made.
The facts and circumstances aIcge fully set
forth and specified IN the complaint and that is all we
do. And yet it argued that until specify all
the considerations and interests that Tweed bad in this
case the proceedings must be stayed Judge Donohues
order says


That plaintiffs should either strike out SO much of
the complaint as alleges neglect to audit the claims re-
ferred tospecifyng such the part commencing with
the words That the said pretended claims or liabilities
were not page and ending with the words signed
the same page or shall state in the complaint that
they do not rely the neglect to audit as cause Of
acton If plaintiffs do elect 10 rely the neglect 70
audit Of action that they shall strike
much the complaint as sets forth any fraud conspr
acy or combination on the part of the said Tweed and
Watson"


Mr. Peckham on his branch of the case contcnded
that If there is one cause OF action set forth, en-
braced the whole of the allegations and there power
In the Court 10 compel the plaintiffs TO elect specially
this or that allegation In this respect all done that
could be done; they gave day and date and sum and
every particular that could be given They had speci-
he'd certain warrants which the plaintiffs claim Tweed
converted to his use and they showed the manner
in which he obtained these warrants and converted
them fraudulenty They we're not bound TO specify in
detail the fraudulent claims made by other parties The
fraud was tho gravaman Of the complaint and that
Tweed was paid large sums Of money because OF that
fraud 1t would be impossible for any
but the defendant himself TO give the bill OF
particulars asked for. The whole order OF
Judge Donohue, especially that part ordering bill OF
particulars and extending defendants time to answer
until II is served involves the merits of the action
affects substantial right and, in effect determines the
action and prevents judgment from which an appeal
might be taken. Our afiidavts show that the very
vouchers, bills and accounts from which could only
make out bill OF particulars have, with some eight
ten material exceptions been destroyed at the request
OF Tweed himself Not only the vouchers and public
records have been destroyed by the defendant his
instigation but also the private memoranda by which
the loss OF the vouchers might be supplied The Court
would, therefore, the difficulty of furnishing any
such bill of particulars asked for


Mr.. Field replied. He said ii not asserted on the
other side that plaintiff cannot furnish bill Of partic-
ulars Some vouchers we're stohn, doubt, but il
does not appear by whom, and some (the Keyser
Vouchersl are IN existence. The avernent that the
claims are all false Is not averment that they
in every particular and the defendant s entitled 10
know in what particular they SO; and the plaintiffs
should state what they know and intend prove The
accounts are invariably described az false fraudulent
and fictitious" and the defendant is entitled know
how they are so and in what particulars


In the other two appeal counsel submitted
serving its decision.


DUNCAN, SHERMAN q CO.


THE AssrGNHEs BOND FILED