Year: 1871

SUSOBEHANhA RAILROAD CASE.


The General Term of the Supreme Court i'll
the Fifth District has rendered its decision on
the appeal brought by the Fisk party from
the judgment of Judge f. Darwin Smith, in
the suit of The People agt. The Albany and
Susquehanna Railroad Company ct al. Judge
Smith, it will be remembered, decided that
the Ramsey Board of Directors was legally
elected; that an election held by " Fisk and
"his associates" was fraudulent and void, and
that certain suits and proceedings Instituted
by them were Illegal, and part OF conspiracy
TO influence Che choice of officers. These p0r-
tions of the Judgment, which hold the essence
of the whole controversy, have been confirmed
by the Supreme Court; but the further
decision of Judge Smith-that the fraudulent
suits must be enjoincd - has been re-
versed on the ground that, III quo
yayranto proceeding by the people to try
the title to an Office the Court has
no power to restrain the prosecution of suits
between individuals. The decision is simply
upon the extent of power, not questioning the
Judgment that the suits are fraudulent and
ought to be restrained. In this regard the
opinion of Judge Smith stands untouched
The Judgment granting an allowance OF
S92 900 against the Fisk party is reversed on
another point of law-that the Court had no
power in an action of this kind to allow costs
to some of the defendants against others; and
also on the ground that since it was not III
the power Of the Court in this action to enjOln
the further prosecution of the fraudulent suits
that is, to decide them-an allowance could
not be granted inasmueh as such grant can
only be made on the determination of a suit.


We repeat that the reversal of portions of
the judgment was based solely on points of
law not affecting the merits of the case. Yet
this decision was telegraphed to all parts of
the country by those in the interest of Fisk
and his associates, as triumph of the Fisk
party. If anything were needed to satisfy the
public of the lack of merit of their cause, it
would be found in the subterfuges and misrep-
reservations to which these gentlemen resort,
and which the present instance so well ex-
emplifes.


The following extract from the opinion of
the Court shows conclusively the ground on
which the General Term reversed the grant of
the allowance, as well as the Courts judgment
as TO where the costs. should be imposed if
the merits of the case were followed:


"The clause of Section PA, which authorizes
the Court to grant to the defendant any
affirmative relief to which he may be entitled,
does not apply to this case. The relief in
tended is relief against the plaintiff, and not
against co-defendant. The only reason for
charging the Fisk directors with the costs of
the other defendants must be that by their
unlawful acts and claims the Ramsey directors
"and others were drawn into the litigation
"and [they, the Fisk directors,l should for that
cause pay the expenses which they have thus
"unjustly imposed upon them. Had the Court
| "imposed the costs of the action on the Fisk
directors alone, it would not only have con-
formed tits Judgment to the statute, but
would have done justice TO the railroad com
"pany by relieving it from burden which il
"shOuld not be called upon to bear. But
"know of no precedent for compelling part OF
"the defendants in an action to pay the costs
"to the other defendants, unless the Court
adjusts the ultimate rights of the defendants
Gin the subject of the action"


Another instance of this tendency toward
Misrepresentation is the use made of re
marx Of judge Mullin at the close Of lis