The New York Herald Newspaper, November 20, 1872, Page 4

4 THE COURTS. ———_———_ QNPORTANT TO PENSION AGENTS. ——_+---— A Lawyer Charged with Violat- ing the Pension Law—What He Says in Self-Extenuation. NAVAL PAYMASTER CAHOONE. His Alleged Defalcation to the Govern- ment Charged to a Disordered Mental Condition. THE RING FRAUDS. ‘The Ex-Magnate of Tammany Again in the Court of Oyer and Terminer---All the Motions of His Counsel Dismissed--- He is to Plead Next Tuesday, CAMDEN AND AMBOY RAILROAD COMPANY en ‘Mhe Retrial of the Old Cotton Suit—Writ- ten Contracts of Exemption from Fire of No Avail Against Negligence— The Company Mulcted in Heavy Damages. THE COMPTROLLER’S CONTEMPT OF COURT A Judicial Breakwater Against the Im- petuous Flood of Mandamuses—The Comptroller Invested with Certain Discretionary Powers—He Cannot Be Asked to Do Impossibilities. Education. ‘Renting a Private Building for Public School Usoa—Holding Over the Ist of May and Then Refusing to Pay Rent. BURSTING OF CROTON PIPES. A Delicate Legal Point as to Personal Liability or Responsibility of the Irresponsible Elements. BUSINESS IN THE OTHER COURTS. Suit to Recover the Value of a Large Quantity of Wheat—Payment of Alleged Excessive Duties Under Protest—Proceedings in the General Sessions—Decisions. in the United States District Court the number ol bankruptcy petitions filed since the Ist of the present month is twenty-seven—twenty-three in- voluntary and four voluntary petitions. Yesterday the case of John Sedgwick, assignee in bankruptcy of Comstock and Wheelgr, vs. George M, Wheeler, came to a conclusion in the United States District Court, before Judge Blatchford and ajury, It was an action to recover $22,000, as balance of account on certain purchases of gold and stocks alleged to have becn made by Comstock and Wheeler for the defendant, George M. Wheeler, The jury rendered a verdict for the plaintiff. In the United States Circuit Court yesterday the case of the Wisconsin Marine and Fire Insurance Company vs. David Dows and others was com- menced before Judge Shipman and a jury. Itis an action of trover to recover the value of 26,000 bushels of wheat which the plaintiffs allege the defendants wrongfully converted to their own use. The defence pleaded is the general issue. The case is still at hearing and will probably last ior two or three days, Yesterday Frank W. Jones, a iawyer, was further examined before Commissioner Osborn on the ac- cusation of having, contrary to the law of Con- gress, charged a greater sum than $26 for collecting a pension for a man named Moffatt, father of a de- ceased soidier of the Union army. The defendant gave testimony on bis own behalf, after which the case was again adjourned. Formal findings of fact in the case of the United States vs. Benjamin J. Cahoone were filed in the United States Circuit Court yesterday, This suit was brougitt, as already reported in the HERALD, to recover $22,000, the amount of an alleged defalca- tion in the accounts of the defendant, who had been a paymaster iu the mavy. These special find- ings show that at the time of the alleged deticiency the defendant, owing to the disordered condition of his mind, was totally unable to attend to any business whatever, The judgment, as previously Stated in our columns, is in favor of the defendant. “The law's delay” received another illustration | fu the Tweed case yesterday in the Court of Oyer and Terminer, An application of leading counsel for Mr. Tweed resulted in the case being postponed until Monday next, when Mr. Tweed will be called upon to plead onacharge of misdemeanor, All the other motions of defendant's counsel were dis- Missed. A verdict for $115,253 was rendered yesterday in | the Court of Common Pieas against the Camden and Amboy Railroad Company, The verdict was the result ofa retrial of the old sult brought against the company by owners of cotton bales de- stroyed at the burning ef the warehouse of the company at pier No. 1 North River, eight years ag An important feature of this last suit is the charge of Judge Larremore to the jury (which is published in full elsewhere), on account of its clear exposition of the law, touching not only the liabil- ity of common carriers, but the degree of exemp- tion from losses by fire by negligence in the face of written contracts specifying such exemption. AB opinion given in our law reports by Judge Fancher, of the Supreme Court, in the case of James McGowan, defines clearly his views upon the subject of applications to punish the Comp- troller for contempt for alleged disregard of the Mandates of the Court. He concedes to the Comp- troller 4 margin of discretion and intimates broadly ‘Whe absurdity of asking him to do impossibilities, ‘that is, to pay money from the city treasury unless Sppropriations have been made for this purpose, or when the claims have not been previously audited and allowed by the Board of Audit and Apportionment, In the case of Colone) Blood, jointly charged with Victoria Woodhull and Tennie ©. Claflin in libelling Mr. Challis, Mr. William F, Howe, the Colouel’é counsel, yesterday renewed the motion before Judge Brady, of the Supreme Court, for a reduc- tion of bail, Alter a very brief argument the Judge reduced the ball from $5,000 to $3,000, Mean- time a civil suit was instituted by Mr. Challis against the Colonel, upon which the latter ts held in $5,000 ball—the same bail required in the civil @uits commenced against Woodtnli & latin, N&W YORK HERALD, WEDNESDAY, NOVEMBER 20, 1872.—TRIPLE SHEET. ‘The prospect of these parties getting out of prison does not seem to brighten much, Judge Fancher, of the Supreme Court, yesterday granted a peremptory mandamus against the Comptroller, directing payment of a special em- ployé of the Department of Buildings. Payment was resisted, on the ground that this was a salary and that there was no appropriation to cover it, It was contended that the pay should be made from the contingent fund, and the mandamus was to this effect. A case of considerable interest, touching the lia- bilities of the present Department of Public In- struction for failure of the old Board of Education in not paying the rent of a building used for a public school, came up yesterday before Judge Fancher at Supreme Court, Chambers. An appeal had been made from a verdict against the Board, and the Judge required security upen this appeal. An imporiant decision was rendered yesterday by Judge Joachimsen, of the Marine Court, touch- ing the case of liability for damages caused by the bursting of Croton pipes incidental to a thaw. The question at issue was a nice one—whether the casualty was chargeable to personal negligence or to the irresponsible agency of the elements, There seems to be every prospect of Edward 3, Stokes being soon again placed on trial for the al- leged murder of James Fisk, Jr, Judge Brady yes- terday set down the trial for the first Tuesday of next month, in the Court of Oyer and Terminer, IMPORTANT TO PENSION AGENTS. cena derecetiens Alleged Overchargoe of Collection Feos by a Lawyer—Important Case—Exomina- tion Still On, Yesterday Commissioner Osborn had before him the case of the United States vs, Frank W. Jones, alawyer, doing business at 117 Broadway. The defendant is charged with having, contrary to the act of Congress, charged a greater sum than $25 for the collection of a pension for a man named Moffatt, the father of a deceased Union soldier. It appears that, after Moflatt had placed in the hands of the defendant evidence to show that he was entitled to the pension, the defendant proceeded to collect it. Moffatt alleges that Jones on one occasion offéred him $50 if he would sign ‘certain papers. This Moffatt refused to do. Op a& subsequent occasion Jones offered to give him $300, and on another occasion $400; but he declined these offers also, claiming that he had @ right to receive a much larger sum. The de- {endant says that be never received from Washing- ton the certificate for the payment ot the pension, but that he knew who did, The certificate, it ap- pears, Was addressed to a place in New Jersey, and ‘was reveived by a third party trom the Post Office ; there, and Jones admits that he knows who this person is, The defendant claims that he was not the attorney of record for the collection of this pension; that he had a contract with Moffatt tor the collection of this money, and that this being so he had a right to charge such sum as he deemed proper for his services and advice. The point taken by the prosecution is that the making of any such contract as that alleged by the delend- ~ent is contrary to the express terms of the act of Congress, and Moffatt swears that he has no recol- lection whatever of having signed any such con- tract, but was willing that Jones should have tor his services whatever was aliowed by the govern- ment. He further swears that he never knew any other attorney in this transaction and had em- ployed none but the defendant, and he had not au- thorized him to employ any other, The defendant yesterday was examined on his own behalf, and, after giving some explanation of the matter, the case Was further adjuurned, The ie of Paymaster Cahoonc—Filing the Findings of Fact. Yesterday, im the case of the United States vs, Benjamin J. Cahoone and others, which, as already reported in the HERALD, was an action to recover $22,000, being the amount of alleged deficiency in the accounts of the defendant as paymaster in the navy (and in which matter there was a» judgment for the defendant), Mr. Willlam W. Hewitt, counsel for Mr. Algernon 3. Sullivan, who had been ap- pointed guardian of Mr. Cahoone in lunacy proceed- ings in the Supreme Court 01 this State, submitted to Judge bet Ht the special findings of the United States Circuit Court in this cause. These findin; show that, at the time of the alleged deficiency, Mr, Cahoone was totally incapable, owing to the dis- ordered condition of his mind, of attending to any business whatever. THE TRIAL OF TWEED. igen ~ Leading Counsel for the Defendant Snubbed by the Court—Monday Next Set Down as the Day for Trial, Yesterday morning the Court of Oyer and Ter- miner was crowded mainly by city politicians and @ curious public to listen to the proceedings in the renewed argument in the case of William. M. Tweed, who was called upon to plead before Judge Brady on a charge of misdemeanor. Mr. Tweed was present with his leading counsel, Mr. David Dudley Field, Mr. Fullerton, William A, Beach and W. O. Bartlett. Judge Brady decided that the District Attorney could not be cempelied to furnish with particular- ity the names of the witnesses who appeared before the Grand Jury in Mr. Tweed’s case; but as the District Attorney had stipulated to give the names of the witnesses in the present case, he was undoubtedly bound in honor by that stipulation; but it also appeared that the District Attorney had substantially fulfilled his stipulation by producing lu a general way the names of the witnesses. Leading counsel for the defence desired the mem- bers of the Grand Jury submitted to the Court and to defendant's counsel for examination. Judge Brady refused to comply with counsel's request, and counsel excepted both to the ruling as to the witnesses and the minutes, Mr. Tremain said that the motions and applica- tions were simply to gain time, and were out of order. It would be time enough to make such ap- plications after Mr. Tweed had been arraigned, and he now moved that Mr. Tweed be arraigned to plead, The action of the prosecution was denounced by | counsel, and he was proceeding in strong terms to comment upon the act of the Court when he was called to order by Judge Brady, who said he con- sidered his conduct disrespectful and would no longer listen to such remarks, Assistant District Attorney Sullivan moved that Mr. Tweed be arraigned to plead to the indictment found against him on the 17th of October, 1872, charging him, jointly with Mayor Hall and ex-CVomp- troller Connolly, with the commission of a misde- meanor in conspiring to commit frauds upon the Ing, © and county treasury. Leading counsel opposed the arraignment at the present time. time to ex- amine the indictment, which had been improperly | found and improperly drawn. Counsel desired to move to quash the indictment, but there had been | no time since it had been in their possession to do | this. Mr. Tweed could not intelligently plead to an | indictment which Was so voluminous as the one in | question before that indictment had been critically } examined by his counsel. It was absolutely neces- sary that tun ould be given to examine some of the warrants and other papers in the case to see which were forged and which were genuine. He would almost sdoner desert Mr. Tweed than advise him to plead to this indictment at the present time, It was strange that when murderers unnumbered were not brought to trial such hot haste should be hibited by zealous ‘Assistant Attorney Gener- is"? who had bitter enmity against Mr. Tweed, Mr. Tremain opposed the application of counsel for Mr. Tweed. Two weeks was too Jong in any event, but especially considering that counsel would not state what they would do after examin- ing the indictment. ‘The indictment was long, but | it was extremely simple and could be easily under- stood. Leading counsel had gone out of his way to denounce counsel for the prosecution and impugn their motives. Such conduct in this respect was unprofessional, and he knew he was uttering un- truths when he attributed bad and corrupt mo- | tives to counsel for the prosecution. Counsel was adroitly acting so as to gain time and save his in- jured and innocent client from a trial by a “preju- diced jary.”” He would do well to consider here- alter what remarks of @ personal character he ad- dressed to counsel for the prosecution, as he might find that blows could be given as well as received. Judge Fullerton spoke in support of the applica- tion of Mr. Field for two weeks’ time to examine the indictment. The oaths of counsel required that they should have sufficient time to examine an in- aictment before advising their client how to plead, or deciding whether to move to quash. Counsel for the prosecution were familiar with all parts of the indictment and knew well the relations of the sev- eral parts to each other, while counsel for the defence cae nothing comparatively about this in- dictmont, Judge Brady said that he would grant a delay to Monday next, sianply to prepare a motion to quash, One week was ainple time for such a purpose, as the indictment, though long, was quite simple. Leading counsel for defendant moved that the prosecution be compelled to deposit where counsel for the defence could have access toexamine them the vouchers connected with the charges in the in- dictment. Mr. Peckham said that the vouchers were in the peal AT and could be examined by counsel at their pleasure. Leadin, counsel for defendant moved that the prosecution be compelied to elect on which count OF counts of the indictment it would fo to trial. Judge Brady sata that question could be disposed Of after counsel for defence had axamined tho in- Counsel had not ha 5 Seeneat and determined upon their course of ac- n. Leading counsel for the defendant insisted that it was abourd to set out two hundred and twenty counts in an indictment, as there were in the pres- ent case, and expect them all to be properly met by the defence, Mr. Tremain said that, notwithstanding the num- ber of counts, they were all substantially of the same nature, and could not be with propriety dis- severed ; but in any event, as the Court had already decided, it was premature to now ask the prosecu- tion to elect on which counts they could go to trial. Mr. Tremain then said that counsel had thrown doubts w the right of himself (Mr. 'Tremain) and Mr. Peckham to i pe in this case as represent- ing the Attorney General, and he would like this matter settled, Assistant District Attorney Sullivan said that Mesars. Tremain and Peckham appeared both by the authority of the Attorney General and the District Attorney, Mr. Tremain produced a letter from Attorney General Barlow, written yesterday, in view of & contingency of this kind arising, giving Messrs, FE ae In and Peckham full authority to appear in Se, Judge Brady said that they wonld be recognized for the present as having full authority to appear in the case. ‘Tne Court then adjourned. HEAVY VERDICT AGAINST A RAIL- ROAD COMPANY. The Old Suit Against the Camden and Amboy Kalliroad in the Court of Com- mon Pleas—Cotton Destroyed at ‘the Burning Eight Years Ago of Their Pier and Warehouses i This City— Another Trial and Verdict tor the Full Amount Claimed—Important Charge of Judge Larremore, A few days ago there was given in the HERALD a detailed account of the suit brought against the Camden and Amboy Railroad Cempany by Messrs. Lamb & Eastman, of this city, to recover for the Joss of cotton bales destroyed at the burning of the wharf and warehouses of the company at pier No. 1 North River, on the 29th of July, 1864, said fire, as will be remembered, having originated on the steamer John Potter, belonging to the com- pany, and at the time moored at the whart.- The cotton burned (137 bales altogether) was part of a consignment sent from Cairo, Il, At the time of shipment a written con- tract was signed excepting the transporting lines from losses by fire, ‘The company fell back on this contract and refused to make good the loss on the cotton, It was claimed in opposition and as not covered by the terms of the contract that the fire was the result of the NEGLIGENCE OF THE SAif.0AD COMPANY, The latter refused tosee the matter in this light, and the result was seeking through the channel of the courts to compel payment. After some two years of preliminary legal sparring the case was brought to a trial before Judge Cardozo, at that time one of the Justices of the Court of Common Pleas, The result of the trial was a verdict for the plaintias, An appeal was taken from this verdict to the General Term, who afllrmed the verdict. 1t was carried then to the Court of Appeals, which ordered a new trial, All this, of course, has taken time, it now being eight years, as stated above, since the fire, A SECOND TRIAL commenced on last Wednesday. In acase of such Magnitude eminent counsel were employment— Mr. Luther R. Marsh and Mr. Shepperd appearing for the plaintiffs, and Mr, Thomas Cuyler of the Philadelphia bar, and ex-Judge Fullerton and Mr, Sandford of this city representing the railroad com- pany. The evidence was mainly a repetition of that at the previous trial, and so was the summing up of counsel, all of which was fully reported in the HERALD at the time. A feature of special in- terest, however, was the CHARGE OF JUDGE LARREMORE of the Court of Common Pleas, before whom the case was tried. This charge is not only specially interesting, as detining the legal liabilities of com- mon carriers, but imasmuch as upon the result of this suit depends @ host of other similar suits by other parties sustaining loss by the same fire. Another fact enhancing the public interest in the defining of the law in this case is the applicability of the same rales of law to the late burning of the warehouses in Brooklyn—that is to say, if, despite contracts exempting liability through loss by fire, negligence can be proven. The following is the charge :— “A common carrier is one who .undertakeg for hire to transport from place to place the egos of such as choose to employ him. He la responsible for ay, loss or damage not cocegiane: by the act of God or the public en- emies. But this gendyal liability may be limited by express agreement, and it is for you to say, from the facts in this case, whether the legal re- sponsibility of the defendant is general or limited in its character. There are two theories that arise upon the evidence to which I shall briefly direct your attention. The one is that maintained by the defendant—that the bill of lading issued by the Illinois Central Railroad Company was the contract under which the cotton was trausported. In it, as you will remember, it is proviled that the through rate should be $2 per 100 pounds, and that tie company are not responsible for damage or loss by tre, Although this smut is not brought against the company with whom this contract is claimed to have been made, yet the defendant, who undertook the carriage of this cotton and in whose custody it was lost or destroyed, is subject to the same liabilities and entitled to the benefit of the same exemptions as were imposed and con- tained in the first bill of lading. This biil of lading is evidence of the contract made by tho parties, and is presumed to embody all that was agreed upon between them. If you beli therefore, upon the testimony, that the plaintit’s or either of them authorized or assented to the issuing of this bill of lading, either personally or by their agent, then the defendant is entitled to the benefit of the exemption ciause in respect to the non-liability of loss by fire, The eifect of this would be to relieve it of its common law liability as a com- mon carrier and establish the relation be- tween it and the plaintifs asa bailee for him, In this relation they would only be liable for the loss of this property, by reason of their own negligence. Upon this branch of the case I charge you, first, as ® general preposition, that the defendant is not liable for the loss unless it appear that the fire which caused it resulted from the negligence of the defendant or its servants. It is incumbent upon the plaintiffs to establish this fact before they can ask a verdict in their favor. It is for you to deter- mine upon the evidence offered whether there was such a want of care on the part of the defendants the exercise of which would have prevented the loss. In reaching a conclusion upon this point you will take into consideration | the situation of the premises where the injury oc- curred and all its surroundings, the character and condition of the pier and the goods thereon, the means that were employed for safety and protec- tion against a peril of this nature, and then say whether that degree of care was used which the circumstances of the case demanded. The care required was such as persons of ordinary pru- dence would take of such property under just such circumstances. If you believe that such care was exercised then the plaintids cannot recover; for the exemption clause in the bil of lading discharges defendant from liability. If, on the contrary, you believe that the loss occurred by the negligence of the defendant or its servants you will then find Jor the plaintitts, ‘Tne other theory of the case is that which the plaintiff's rely upon as a ground of recovery. They claim that the agreement for the transportation of this fete Was verbal, that it was made with the duly authorized agent of the Illinois Central Railroad, that the cotton was to be carried from Cairo to New York by “all rail,’ and that no exemp- tion for loss by fire was agreed to or even spoken of, The plaintifs have sworn positively upon this point and are corroborated us to the fact of exemp- Uon for loss by fire by the agent of the Illinois Cen- tral Railroad Company. No attempt has been made to contradict this evidence, except by the production of the bills of lading, which, it is claimed, conclude the parties as to the terms and conditions of shipment. If you find that plaintiffs authorized or assented to stich an exemption as a condition of the transportation of the cotton—if these bills of lading fully express the agreement made—then they are conclusive upon the parties. But if such exemption clause was inserted without the authority or assent of the plaintiffs, they would not be bound by its terms. ‘The platntiffs nave testified that they did not see the bills ef lading until after the fire occurred and upon this point they have not been contradicted. If you beileve, therefore, that the goods were delivered to the Illi- nois Central Kaliroad Company or its agent, under the verbal agreement sworn to by the plain- tds, and that such agreement had been acted on, then the defendant (being the carrier in whose custody the ds were when the loss oc- curred) is liable, whether such loss was the result of its negligenee or not. Under this agreement the defendant is responsible as a common carrier for the loss of the cotton, unless, as | have already stated, such loss was occasioned by the act of God on the public enemies. Loss by fire then, in this view of the case, would be no excuse for non-de- livery of the cotton and defendant wouid be liable for its loss,"” THE VERDICT. So clear and explicit was the above charge that the jury did not take over five minutes jor con- suitation. The verdict rendered was $114,235 for the plaintiffs, being the whole amount claimed, with intere! THE COMPTROLLER CONTEMPT MATTER, wa Important Opinion of Judge Fancher, of the Sapreme Court—The Degree of Discretion Granted the Comptroller= Absurdity of Asking Him to Pay Money When He Has Not Got It-Mandam Stock Going Down. How James W. McGowan, (n July, 1870, was av- pointed one of the messengers of the Board of Supervisors; how he found no dimiculty in getting his salary till Comptroller Green was placed as guardian over the city exchequer; how on the lat- ter's refusal to continue the payment to him of his monthly stipend he applied to Judge Ingraham, of the Supreme Court, for peremptory man- damus against the Comptroller, directing him to pay the same ; how this mandamus was granted; how the Comptroller refused to pay him on this Mandamus; how, thereupon, @ motion was made a few days since, before Judge Fancher, at Supreme Court, Chambers, to lock the Comptroller up in prison for his contemptuqus disregard of the man- date of the Court, have all been fully reported in the HERALD. The next point of interest in the matter is the decision of Judge Fancher upon the motion to punish the Comptroller for contempt. As there are two other motions of similar character pend- ing in the Court, and possibly more to follow, the pualon of Judge Fancher, embodying his de- cision, is published below in full:— OPINION OF JUDGE FANCHER. When thls proceeding was before the preniding Justice atthe Special Term, on an application for a peremptory mandamus, the answering affidavits of the Comptroller Jeft the inaterial allegations of the relat: tradicted thatthe Court was war essential facts—tirst, that the rel: ap. pointed employe of the Board of Supervisors, entitled to specified salary ; and second, that there were funds under the control of ‘the respondents sufficient to pay the re- Jator's claim for salary due, and which were not appro- poses. In of facts the dit Justice was correct, and issued under his order was proper. But. now rs On & further examina- tou by the Comptroller of the complicated accounts in his ofice that the appropriation made by the Board of @ salaries of employes of the in the Clerk of said Board, excepted $500, and 1 the salary for the balance of the year of James McGowan, the tather the relator, who is the regularly appointed Sergeant- at-Arms of thé Board of Supervisors, that tho regularity and validi the relator as an employe of thefBoard of Supervisors aro dented by the Comptroller; and he denies that the Board of Supervisors has ‘made any apportionment fo pay his salary. Had thes facts appeared | in the answering affidavits of the Comptroller when the application for the mandamus was pre- sented to the Presiding Justice it is certain he would not have issued a perompiory writ. The utmost he would have done would have been to issue an alternation mandamus, so that the allegations of the Comptroller as to the want of @ proper appointment of the relator, and the want of funds to cover his salary, could be controverted by the relator and properly tried. “Itis held in the Peaple ex rel. Jolson vs, The Supervisors of Delaware county, 45 N, ¥., Rep. 196, that When # Board of Supervisors has aidited and allowéd @clalm at a certain amount, a mandamus can- Not issute to compel itto audit the claim and allow it at Agreateramount. Unless, therefore, the Comptroller is to be personally chargeable with the expenses and salaries of the Board of Supervisors, 1t does not seem prover tocall ou him to pay @ larger amount theretor han the Board of Supervisors has already ailowed, for, it seems, the Board cannot be compelled to increase the allowance, A mandainus cannot interfere with the DISCRETION OF THK COMPTROLLER, In the case above cited the Court of Appeals ordered a peremptory mandamus to be amended in the Court be- low, 80 as to conform to the justice of the case, A mo- tion for amendment is made ‘here. If the peremptory writ now before the Court on this inotion does not con- form to the justice ot the case, should tt not be amended? It would seem there is sufficient power in the Court to order an amendment. Itis provided by section 471 of the Code of Procedure that in actions or proceed- ingsby mandamus, amendments of any mistakes in the process oF proceedings may be allowed and shall bo made in conforinity with the provisions of chapter 6, ttle 6, of the second part of the Code, One of the provisions Comprised in, that, chapter (section 177) is that elther party may be allowed to make a supplemental complaint, answer or reply, alleging facts material to the case occurring alter the foriner pleading, or of which the party was ignorant when his former pleading was made ; Aud another (Sec, 174) ts, that the Court may, likewise, in Its discretion, and upon atch terms as may be just, allow fo be made, or other act to bé done, was proper! also now appears of the appointment of an answer or repl, after the timg limited by that act, and may at any time within one year alter notice thereof relieve a party from a judgment, order or other proceeding, taken against him througit his mistake, inadvertence, strprise, or excuse- able neglect and tay supply an‘omission in any pro- ceeding, The provisions ure | -suiuctently "broad to aliow an amendment of the _procecdings and the only remaining inquiry is whether the amendment will be proper and im furtherance of jus- tice. The Comptroller 4s a public ofticer, an are so iinportant to the public welfare tl hould dis. charge them promptly and with tidel The faithful exercise of the functions of his office should not be onnitted, yet there is no reuson to call upon him to PERFORM IMPOSSIBLE OR IMPROPER ACTS. He cannot disburse moneys unless they are under his control; nor can he pay claims that ‘have not been audited and allowed by broees authority. Before he should be required to pay the claim of the relator it should appear that the claim had been properly audited and allowed, also that there were funds in the hands appropriated to pay the claim. Neither of these facts ‘appears. The relator should establish both ve before he is entitled toa peremptory mandamus. Where eard and there is no dispute peremptory mandamus may be issued. ere ty a dispute about the facts, as in the case here, it is better to allow an alternative writ, to which the Comptroller may make @ return; and the re- lator can demur or reply to the return, so that an iysue inay be formed and the disputed question’ of fact property tricd and determined. I think the justice of this case will be met by an order that the peremptory writ be amended within ten days insuch form as to mnake It an alternative writ, the relator to be at liberty to insert therein such allegations as he deems tnaterial. The Comptroller may make return therein in ten days thereafter, and within like time the relator may demur or plead to the return. Ordered accordingly. ALL ABOUT RENT FOR A SCHOOL BUILDING. Raising the Rent, but So High the Landlord Could Not Reach It—Getting a Judgment, but Not Getting the Money. In 1868 Mr. Jex let to the Roard of Education a building on Broadway, near Fortieth street, for a year at $2,500 rent, the same to be occupied as a public school. In lebruary, 1869, Mr. Jex, through his agent, asked the Board if they desired the premises for another year, at the same time stat- ing that he expected an increased rent. The Board, as usual with public bodies, embarrassed by “red tape,” delayed giving Mr. Jex an answer until in April, when Mr. Jex, as he claims, distinctly notified them if the school remained for another year there would be AN INCREASE OF RENT and he should charge them $6,000 a year. The school remained after the Ist of May, and then tried to negotiate for a new tease; and Mr. Jex refusing to accept less than $6,000, the building was vacated in July, and they refused to pay Mr. Jexadollar, Mr. Jex then sued them for the rent falling due August 1, and brought two suits after- wards for the rent due in Nevember and February, 1870. All the suits were defended by the Board through thelr special counsel, Mr. A, J. Vanderpoel. The first suit was tried this Spring, before Judge Van Brant and a jury, and resulted in a verdict for Mr. Jex for $1,000, establishing his right to the $6,000 a year rent. Judge Van Brunt left it to the jury to find whether Mr. Jex distinctly, in April, gave the alleged notification to the Board, and the jury found he did, The Board also sets up that they could not be sued, notwithstanding the act of 1854 expressly created them a corporation. By the amendment of 1871 to the charter the Board was abolished, and their duties devolved on the Department of Public Instruction. There was an APPEAL FROM THE VERDICT by the latter, ana yesterday the subject came be- fore Judge Fancher, at Supreme Court, Chambers, on @ motion on behalf of the defendants for a stay of proceedings without security. Pending this ap- peal Mr. Vanderpoel occupied the attention of the Court in wisely insisting that now there was no such corporation as the Board of Education, and hence that the suit could not stand. He also enlarged on other merely technical points, Mr. Anthony R. Dyott, counsel for Mr, Jex, in his reply in opposition to the motiom, characterized the litigious spirit. of the Board as disgraceful, and their ote factious and the deicnce technical and dishonest. He insisted that the suit ought never to have been defended, and 7 ae ought to have been paid at all events; that the counsel of the Board, although he claimed his client, was defunct an had become a part of the Corporation which was not represented, was contending that Mr. Jex had no remedy now except against the city, who had not been sued, and in the course of his remarks he said that such were the technical defences set up by the counsel of the city and other public bodies; that the city to-day could not get credit ior a | bushel of potatoes, because the creditor never kuew when he would get his money, and that it the ROBBERIES OF THE CITY TREASURY could be traced to their source it would be fonnd in this litigious spirit which had first suggested the purchase of the way to justice. After listening to the argument Judge Faucher said that he thought the plainti’ would ultimately get his money on the judgment in some way, but he would not impose further embarrassments upon him and would re- quire the defendant to give security for the costs of the appeal, and he accordingly granted the stay upon such security being given, CROTON PIPES BURSTING. Complicated but Interesting Question as to Liability—A Nice Point as to Personai Negligence or Irresponsible Agency of the Elements—Important Decision of Judge Joachimeen, of the Marine Court, | ;, Messrs. Henry Collins & Co, and Louts Amson & Co, are respectively occupauts of the building 424 and 426 Broadway. The former are occupants of the basement and first floor, under lease from Mr. Higgins, in which they stipulate to pay one-half of the annual water tax for the entire building to him, The latter are occupants of the upper por- tion of the premises, under @ lease from the same landlord and with a like stipulation to pay half the water tax, This payment is made by both par ties to Mr. Higgins. The water is supplies to plaintiffs by pipes on the north side and to the defendants separately by pipes on the south side of the building. ‘The plumbing work is of the best description. The supply pipes to the defendants are icd from the main into the base- meat occupied uv Colliga & Co.. laid korizgutele for about twenty fost, and then perpendicniar to e ions le; ro defen \- There fs also small cook at the base in the basement, by which the er to Amson & Co.’ it Wi had frozen a such pipe burst, as is sup) reek in upwards, in the pipe is about two feet below the Second floor and outside of the premises described in defendants? lease. Suit was brought before Judge loachimsen to recover the amount of the alleged damages, the following is JUDGE JOACHIMSEN’S DECISION :— ugehes ean be inputs er Gegesase He phatatis imput e defendants, 6 plants theory is that defendants during the cold’ weather should have prevented the water which before, without negll- fence, had passed and remained in thtir supply pipe in freezing or remaining frozen. The elements and not the detendants caused the freezing, and whatever might be argued, had the break occurred ‘on detendants' promises, it cannot be eld that thes are answerable on ‘he premises over which they had’ no control. 1 think that to sustain’ such a claim would, be carrying the i were beyond its legitimate limits, e Cases one of abeque ‘ivjuria. It ts within the ex. ceptions mentioned by Chief Justice Daly in, the opinion lolph vs. Puc! w! am controlled. ‘The learned Chief Sustive and tis abl tes in 80 any defect or neglect Concerning them. The, burthen of ant such proof is on the plainti he has failed to produce it. Moeve vs. Govel is not applicable. There the injury occurred on defendant's premises, There must be an order that the plaintiff's action be dismissed with costs and $25 allowance, and it is so ordered, BUSINESS IN THE OTHER COURTS. UNITED STATES CIRCUIT couRT. Suit in Trover to Recover the Value of a Large Quantity of Wheat. Before Judge Shipman and a Jury. Yesterday, in the United States Circuit Court, Judge Shipman and a jury were engaged in the trial of the case of the Wisconsin Marine Fire In- surance Company vs. David Dows and others, It was an action of trover to recover the value of 26,185 bushels of wheat which, it is alleged, the de- fendants wrongfully converted to their own use, The wheat was purchased in Milwaukee in 1869, and the plaintifs claim that they acquired a title to the property by having discounted the drafts with which the purchase of the wheat was made. The defendants plead the general issue. The case is Still on, and will probably occupy the attention of the Court tor two or three days, Excessive Duties—Payments Under Pro- test, Before Judge Shipman, forma) verdicts were ren- dered in the following cases :. Charles Morlot and others vs. ex-Collector Hiram Barney.—An action to recover for excise duties pad under protest. Verdict for plaintiffs for 257 77, charges and commission, Hercules E. Gillilan and others vs, ex-Collector Augustus Schell.—Same cause of action. Verdict for | boo ar for $2,587 93, Charles A. Habricht and others vs. ex-Collector Schell.—Same cause of action. Verdict for plaint- ims for $253 90, Louis Curtis and others vs. ex-Collector Schell.— Same cause of action. Verdict for plaintitts for $3,459 59. SUPREME COURT—SHAMBERS. Decisions. By Judge Fancher. In the Matter of the Petition of Ann McElroy, Cuaraian, &c.—Order granted for payment of in- erest, In the Matter of the Petition of John H. Monell to Vacate Assessment for Paving Lexington Avenue.— Order granted. Henry 0, Burkett va, Samuel Cohen.—Motion to vacate the order of arrest is denied, In the Matter of the Petition of R. Renson to He eee: Discharged of Record.—Order ranted, John M. Leo et al. vs, Julius Wolff et al.—The mo- tion for IanO so far as it relates to the names of the article sold is dented, but granted as to the ai es on and wrappers in imitation of the aintifr, SUPERIOR COURT—SPECIAL TERM. Dec: By Judge Sedgwick. Otillie Krayser et al. vs. Margaret Hooble et al.— Order granted. Hoyden Brown vs. Jeremiah D. Moore ct al.— ame, Hannah T, Horton vs. Mary A. Moore ct al,— Same. Addison Brown va, Same.—Same, Same vs. Jeremiah D. Moore.—same. James C. Spencer et al. vs. Henry Stucke.--Ref- euce granted, Robert Jardine va, John Quackenvush.—Order denying motion. MARINE COURT—SPECIAL TERM—CHAMACRS, Decisions. By Judge Tracy. Walter Scott vs. Sarah Beck.—Motion to open default granted. Elizabeth Seaver vs. David M. Johnson.—Motion n default granted. John H. Behrens et al. vs. B. Zimmermann,—Mo- tion granted. KE. M. Crawford et al. vs, David Fitzgeral d,—Mo- tion granted. Isaac D. Nordlinger vs, G. M. Mittnacht.—Order settled. COURT OF GENERAL SESSIONS. Alleged Wife Murder—Trial of Emile Andrie for Shooting His Wite—Impor- tant Testimony for the Prosecution— What wiil the Defense bet Before Judge Bedford. After disposing of some preliminary business yesterday, Assistant District Attorney Fellows moved the case of Emile Andrie, indicted for the | murder of his wife on the 13th of June, at the cor- ner of Fifteenth street and First avenue, Messrs. Prooks and J. R. Dos Passos appeared for the ac- cused, by whose side sat an intelligent looking lit- tle boy and girl, who were too young to realize the awiul position in which their father was placed. An impartial jury was obtained in @ little over an hour, none of the gentlemen having remembered reading any- thing about the occurrence in the newspapers, One juror said that he never read the particulars in reference to murder cases in the papers any more, because they were of such frequent occurrence, This remark caused a general titter in the court room, and it is needless to say that the counsel for the defence excused him from serving. After the jury were sworn Colonel Fellows said that he would not make a formal opening, but sim- ply state that the Grand Jury had charged tie pris- oner with seizing his wife with one hand by the hair of her head and with the other, pistol in hand, firing a shot which caused her death. The first witness called for the prosecution was James W. Kelly, who testified that he lived at 39 Chrystie street; on the 15th of June last he saw the prisoner in Filteenth street, near First avenne, coming from avenue B; the witness heard scream- ing while he was on the other side of the street, and, looking round, he saw a woman running, fol- lowed by the prisoner, who got almost beside ‘him; the prisoner made a grasp for her, but she cluded him by running into the street; when she got but a step or two in the street the prisoner caught ner by the hair of the head and fired a pistol; she fell in the street; the prisoner walked a short distance towards avenue A, and it was the impression of the witness that he put the pistol! in his pocket; wit- ness did not not the pistol! when he first saw the prisoner; the woman was four or five yards in advance of the prisoner when the atten- tion of the witness was it directed to them; he could not catch any words when she was scream- ing; the prisoner followed her irom the sidewalk into the street; after he shot her he walked a short distance, returned and looked at her body, but the witness did not look at it with any particularity, yet suficiently so to see that there was a wound in the neck ; the witness heiped to keep the prisoner until a policeman arrived to take him in charge. Cross-examined—The woman fell as soon as the pistol was discharged, which was a single-barrelled one; he seemed to push her, and at the same time she fell; the catching by the hair and the firing of the pistol were almost at the same moment; the prisoner uttered some words which he could not understand; the prisoner looked as if he were in & passion or excited; some of the crowd at- tempted to strike the prisoner, and he used his arms and shrugged his shoulders a good deal; the crowd around threatened to lynch and hang him he said to the crowd, “No strike me, | killed he the witness ceuld not say that the prisoner at- tempted to escape; the body was put on a cart, and an officer took the Biv !? in custody and conveyed him and his dead wile to the station ouse. John Tucker, the next witness, said that the first he saw of the occurrence was the prisoner stand- ing in front of the deceased when she was lying in the street, with a pistol in his hand, a num! arties beiug around him; the prisoner said that he was the mam that shot his wife, and would do it again if she was living; this was said in broken English; the prisoner pointed to himselt and then to his wife, saying, “Me do it, and me do it again ;” the witness with assistance took the pis- tol away from the prisoner; Officer Kennedy came up and we gave the prisoner into his charge; we returned to where the woman was lying and put her into a pedier’s wagon and brought the pris- oner and the body to the station house; tbe witness to Oflicer Kennedy. gave the prisoner at tengtn by This witness was cross-examine: Mr. Brooks, ‘Thomas Gallagher was the next witness exam- iped he tum wrosacution, Halaatd tw waa al lhe Corner of Fifteenth street and First avenue, with: ae about twelve o'clock in the day, heard a woman screaming, com- ing up the street, followed by the pris- eaer, who canant her aah the hair g the street, and after the witness aneue neh horse he walked up to the woman and found that she was dead; the prisoner came and looked over her; the body was put in the and taken to the eta- tlon house, and from there to the Morgue at Beile- bl Hs prisoner said, ‘Phat is my wife; me shot Moses Mentz, who was passing t) Fifteer street at the time, said tit Cran — ing out of a house and running up the street, fol- lowed by the prisoner, who shot hers the did not hear any screaming; he saw’the pistol im the prisoner's right hand while he was running. In answer to the counsel he sald that he did not see the prisoner take hold of the woman by the hair of her head, and in reply to the District At- torney stated that there were others between hing and the prisoner and the woman. The Assistant District Attorney informed His Honor that the doctor who made the post-mortem examination was absent, and counsel for the de- fence having refused to permit his deposition to be read, the Court adjourned till Wednesday, It was rumored that the defence will be ‘Insanity, the accused having been led to commit the act by the infidelity of his wife. BROOKLYN COURTS. UNITED STATES CIRCUIT COURT. The Validity of a Patent Questioned The Board of City Works Fighting a Contractor—An Important Decision by Judge Benedict, Charles Guidet vs, The Board of City Works,—A motion was made by plaintiff for an injunction te restrain the Board from executing, on behalf of the city, acontract for repaving Henry street, in ac- cordance with certain specifications on file in their office, which contract the Board advertised as opem for proposals. Yesterday Judge Benedict rendered his decision in the case, The Judge said :—‘‘A pave- ment laid in accordance with such speci fications, will, as the plaintiff insists, be an infringement upon a patent issued te him and known as Russin 4,106, granted August 23, 1870, The rules by which the Courts of the United States are governed in application of this class are well settled and need not be restated here, The first question arising upon such a mo- tion, where, as in this case, the patent in question has never been adjudged valid in any action, is whether the plaintiff shows sucha public acqui- escence in his claim as raises a presumption in Yavor of the validity of his patent. The bill avers an undisturbed possession, use and enjoyment of the exclusive privileges described in the patent, and the ailldavits show that the plaintiff haa been employed to lay some fourteen miles of his pavement in the cities of New York and Brooklyn during the past four years, No other instances of a recognition of his claim ara stated, nor nave any licenses to use the plaintia’s shear been granted by him, it being his plan to lerive advantage from his patent by laying thi pavement himself, as he is prepared to do, de- termining whether these facts are sufliicient to- show such & public recognition of the plaintif’s claims as the law demands, it is to be considered that mere tapse of time is not sulllcient. ‘The ac- quiescence in the patent, must be attended with circumstances indicating that such acquiescence would not have occurred if any fair doubt had existed as to the validity of the patent. ‘The nature of this plaintii’s invention, and the circumstances under which he has been employed to lay it down, become, phereforg, important, and it isto be noticed that the patene is or 8 heey stone pavement, required only om the great thoroughfares of large cities. No pri- vate persons c@h be supposed to have had occasion to consider 6" platntiit's claim. Of the cities likely to use such a pavement, so far ag the papers. before me sh@%, none have dealt with the plaintimt except New york and Brooklyn, and in those cities the plaintif’s éMployment has occurred within the —_ four years. Under how many contracts with ‘hose cities the pavement has been laid is not stated, nor whether in the instances referred to the plaintiff! obtained the contracts by private award or as the sole or a competing bidder for contracts ably advertised. ‘The price paid b; the plaintiff exceeds by some thirty-four per cen the price at which other parties have offered to lay down the pavement called for by the specifications here in question. I am to say, therefore, whether the fact that persons in authority im the cities of New York and Brooklyn during the past four years have in these instances employed the plaintid at his price to lay his pavement, war- rants the conclusion that the validity of his patent is free from reasonable doubt. To my mind suck action of the authorities of these two citics within the period referred to does not lead to such a oon- clusion and is wholly insufficient to raise presump- tion in favor of the validity of the patent. For ought that appears the plaintiff was the only bidder in the cases where he was employed, or he may then have been the lowest bidder, or the necessities of the department may then have been such as to make his employment a necessity without any refer- ence to his patent; and even if his claim had im those instances been distinctly recognized by the authorities, that would not work a3 au estoppel om the city, nor require me to presume that the va- lidity of the patent is free from doubt. ‘The absence of facts suilicient to raise that presumption in this case must be held fatal to the present application. Furthermore, it appears that Henry street can be paved under bids received for the proposed con- tract ata price less by some $8,000 than the price charged by the plaintiff for his pave- ment, and the specifications laid before me by the plaintif on this motion contain a provision whereby the contractors for Henry strect will be liable to save the city harmless from any claim of the plainur? arising out of the laying of the pavement proposed. It is manifest, therefore, that if the injunction now asked for be ae the city will be compelled to pay for the lenry street pavement some $4,000 more than it could be poe for under the contract proposes, while if the injunction be denied no loss will col either to the plaintiff or the city, because the city of Brooklyn is always to be found and will always be able to respond to the plaintiff in any damages which he may become able to claim by reason of any infringement of his ater tae white the contrac- tors must in turn respond to the city for any sum 8@ reccvered, Such a result of an injunction is suffl- cient to require its refusal in a case like this, where the public interest is concerned. The motion is therefore denied, CITY COURT—TRIAL TERM, Salt Against the City Railroad Com- pany. Before Judge McCue, Dr. Nathan Newton, an aged gentleman, a resi- dent of the Eastern District, sues the City Railroad Company to recover $10,000 damages for personat injuries. On the 18th of May, while in the act of getting on an open car, at the corner of Fulton and Bedford avenues, he grasped a broken guard at the end of one of the seats, when the guard gave entirely and he fell back in the street, receiving injuries from which he has not yet and may never fully recover. Hence the suit. The defence is con- tributive negligence, Case on, COURT OF APPEALS DECISIONS. ALBANY, Nov, 19, 1872. The following decisions were rendered in the Court of Appeals to-day :— Judgments afirmed with costs—Abernethy ve. Knight, The People vs, Faucher, Tie People va. Curtis, Parker vs. Brett, Whitin vs. Pendergast. Judgments reversed and new trial granted—Ve-~ rona Cheese Company vs. Martaugh, Miner vs. Beek- man, é Cake of General Term modified, &c.—Watson vs. fardine Order of General and Special Term reversed and motion denied, with costs—Farihers’ Bank of Fort Edward vs. Leland. Order of Supreme Court and Surrogate’s re- versed—In the matter of Kellum. Orders affirmed, with costs—McColl vs, The Sum Mutual Insurance Company, Hovey vs. The Rubver Tip Pencil Company. Appeal dismissed with costs—Cushman vs. Brundett. Motion granted and appeal dismissed, &¢.— Harris va. Wade. Motions granted and cases put on the calendar for the 4th of December—The People ex rel. Hey- den vs. The City of Rochester and four other cases, Judgment reversed except as to one penalt; and excess of fare paid, and judgment al rmed, with costs, in the Court below, without costs to either party in this Court, Colwell vs, the New York Central and Hudson River Railroad and forty-four cases against the same company. Judgment reversed except as to two penalties and excess of fare paid, and judgment affirmed, With costs, in the Court below, without costs im this Court, Beckrich va, The New York and River Ratiroad, Judge Barnard’s Successor. The Court of Appeals, ail the Judges present and no one dissenting, sustained Governor Hoffman's action in appointing Judge Fancher in place of Judge Barnard, removed by the Court of Impeach- ment, Court of Appeals Calendar, ALBANY, N, Y., Nov. 19, 1872, is the Court of Appeals calendar i Nos, 498, 499, 837, abs, 302, 407, 486, The followin, for November 20, A STABBING AFFAIR. Owen Short, of 334 First avenuo, was walking op Seventeenth street Monday night, about twelve o’clock, when he was rudely accosted by one James O'Neil, who began abusing him and finally struck hita, Short attempted to defend, hit U when O'Neil drew a large dirk knife from pocket and stabbed Short in the back, Inficting & wound, He was arrested tad taken be! ludge Scott, at Fasex Mark er TUIng, fan committed for trial, om FOMerday marMiAge