The New York Herald Newspaper, February 11, 1879, Page 5

~ TAMMANY WORSTED. Judge Barrett’s Decision Sustaining the Injunction Proceedings. MEMBERS’ RIGHTS ARE SACRED. Action of the Sachem Managers Declared To Be Tainted by Fraud, A decision was given yesterday by Judge Barrett in the injunction case brought by Hubert Tuompson against the Tammany Society or Columbian Order, to prevent the initiation of 147 proposed members. “From the opinion which is given below it will be seen that Judge Barrett continues the injunction, He holds that the meeting for the election of the members in question was pot properly advertised; that the plaintiff was fraudently deprived of his nmghts as a member, through the fraud that was practised in respect to the meeting, and that the proper remedy is not by quo warranto proceedings, but that the remedy has been properly sought ‘through the present application for injunction :— é JUDGE BARRETT’S OPINION. ‘There can be no doubt ubout the facts of this case. It clearly ap that the plaintiff requested the sec- “retary, Mer. itevens, to notify him of any meetings that might be called. At first the requost was com- lied with (of course, ex gratia), but in the present instance 1t was ignored and Mr. Stevens went to the opposite extreme of calling the meeting in an unu- sual manner, advertising it in an obscure sheet which can scarcely be called a newspaper, and then holding it long betore the customary hour, One would be fo « doliberata'purpose to deprive tue pisintif of his gee 8 delil ve tue intiff of his sieby to attend | ‘and vote. Indeed, Mr, Stovens no- w) denies that such was his purpose. He simply shields himself behind the constitution and bylaws, “declares that he formally complied therewith and that he alone is responsible for the methods adopted. ‘Nor does he deny that, as to regular meetings, the wony has os By itsown almanac and given uni- formit ay the setting of the same. Thus, the fraud Se e plaintiff was twofold—first, in advertising - with intent not to notify; second, in proceeding be- fore the customary hour with intent to provide against the possible accident of notice. What is the guswor attempted to be made to these charges? The darned counsel for the defendant do not dispute the Laser ged Purpose. fara contention seb i itaptag fect wrony 8 compliance w: re laws snd that Enoxe ean be uo redress. The ‘rat answer to this is that the bylaws were not strictly complied with. iT OF THE MEETING. ADVERTISEMEN’ Public notice of this meeting was not given even in one newspaper, for the Mercantile Journal is not a newspaper in the sense in which that word is used in Re bylaw, The object of the bylaw was to give no- , and the newspapers contemplated thereby were such ag are acceasible tothe public and have sume general circulation, The journal in question is but one of a class of publications known as trade papers, which are sold only to advertisers in quantities for free distribution. Further, the meeting was not held “at half an hour after the setting of the sun,” because that phrase, doubtless to secure precision for; gaunt convenience, has acquired a definite meaning by the resolution and custom of the society, and there is no retence of compuanes with such corporate interpre- tion. But still further, even if there had beon strict compliance with the letter of the law, fraud would vitiate the act, especially where, as here, there was a trust relation. PROCEEDINGS VITIATED BY FRAUD. Fraud vitiates even the most solemn proceedings of courts of justice—proceedings which upon their face have been conducted with perfect regularity and in strict conformity to the governing the proce- . dure. ‘Acts, though valid in the abstract,” says Judge Cowen, in Anson, 22 Wend., 620, ‘‘are almost ‘ without exception troated-by the law as nullities when done fraud of third ns. Even judg- and decrees obtained with that view are often ied;”” and in the Bank of Buffalo vs, Lowry 633), the same learned Judge observed that by no means an extenustion, much less ® protection to fraud, that legal machinery is to in its Re coe In Juckson vs. Crofts (18 Johns., 110), the proceedings seem to have been entirely regular, but the sale was held to be fraudu- lent and yoid because the assignee of the mortgagee, who acted as auctioneer, seeing the defendant ap- | peared struck the premises down to his own brother ‘or one-third less the amount due. ‘To sanc- tion such procecdings," ssid Ju Wadsworth, (Smeets, he gobeyeniry, Fd sustiee, 7 Pn s WL Peurce, 2 Kern, ve. 5 5 S16, were cases where Map tithotaats oben oceealiy “Mls asurgnices that'no further proceedings would bo ‘east no wo ‘taken not to defend. It was held that rellat was _ within the power of a court of equity. BOLD AND OBIGINAL VIEWS. +, Now, can it be doubted that relief is equally within the power of acourt of equity, where the process ia served, say by publication, and the plaintiff by artifice “or trickery, not to Aged ot direct information, pre- yeuts the defendant from receiving the stetul botice? And yet we are told that compliance wit! the forms of a corporate bylaw nas greater force and than bei tg in @ court of justice Siiste tgs ‘mola ous cd te bylage he arpoes, of use of the bylaws for * ahd his member so not discovered, of depriving the plant rights is amenable to no law, and that the wronged can have uo redress. It was also urged that this result would be the same even if tue secre- tary he BY sao to the plaintiff and false! r no mecting been falted, that no advertisement had inserted and that he need not trouble himself upon the subject. ‘These are bold, and, we may be permitted to say, Supported by" puthority and sbhorreat to our senso su] eathori rent to our sense of Hustice, ven as between vendor aud vendee it is settled that the effect of what would otherwise be notice may be destroyed not only by actual mis- tation but by mere silence, or by thing calculated to deceive or lull suspicion on a puetionite p cir (Kerr on Fraud or Mistake, p. 257, and cases here cited.) We may add that strict adherence to the bat’ of a bylaw, 80 fae § Srom, eheolgtely absolv- may, un ¢ se acct quite clesely in the direction of fraud with - ite attendant consequences. : PRAWING 4 PARALLRte , Take 9 single illustration. Suppose an incor- | pbone club required the secretary to notify mem- . of ite meetings by posting its notices to each ee at his as contained in the direc- cry for the current year, Will it be said that when a member notifies the secretary of a change of ad- dress that oilicial, after perhaps ly acting i Spon such notitication, may on & subsequent occu- jon, not carelessly but dosgnedly, and to prevent a member's attendance at a particular meeting, ignore the change and comply with the bylaw by to the directory addrvas? Now, if this may be done with impunity and without redress in one case, why pot in another, until finally the secretary becomes . the arbiter on all questions of membership and club government? r PREROGATIVES OF THE KECRETARY. 4 ‘What counsel have said about the right of the sec- ‘ mer, to choose new or newspapers and vary the vel Of publication is ali well geone, Ot that right there is no question, But it + must be fairly exercised. The intent must be honest. It is, of cqurse, difficult, at times, to penctrate the ion, for fraud must be “workings of a 20} dist ly proved. What mean to assert is, that fraud may be pi of aclear abuse of discre- redicated bon; that in the case at the bar such abuse is fully established and substantially undisputed; that this amounts in law to a f upon the tit, for which he is entitled to redress, and that it is none the less a fraud because in part under the . lotiee of # corporate bylaw. « next consideration is whether the act of the - Secretary is to be deemed the act of the soviety. It # general rule that the act of an agent, when act- within the scope of his authority, binds the . This doctrine applies to corporations, yand acompany is as much bound by the tt it, secre {iy'or the directors of trusices, if the. prosout dis re OF trusices, presen “eussion were with reference to direct pecuniary in- Fehend these general principies would uted. But why should the fact toresta are indirect and result- question? Why, even if there ua wore simply Roprived of hia ight to partie mn rived of his right | in Woe daittedatiebe or a benevolent society? = is uo Just distinction, so far as the effect the is converned. There surely can be no good Ad e table soviety or social club should bound by the fraudulent acts of its president or ich deprive a member of his tight to juestion as tothe proper disposition of oF '. be entirely absolved iler not hate tier the member ot the i 48 Hi roi the pooutiny, socal or other ', BOC! or ot! ene- the institution. Any such doctrine member ent remodiless and at mpletely in the power of a designing prevent case everything that wi the line of aH is = seRgese tite Led at si28 Ss u i: HT fe $2 Wrong sought to be redressod is in law that of the THE PROPER REMEDY, The question remains whether the intiff has a remedy in equity and by injunction. ‘That depends upon whether law afiords an adequate remedy. It is not pretended that this would be afforded by a mere action for damaxes. Nor is it claimed that the provisions of the Revised Statutes giving this Court power on summary application to set aside a cor- porate election have any application. The conten- tion is that the plaintiff has # remedy by civil action in the nature of uo warranto, ‘hether such remedy exists upon the meant of the phrase “any within the State,’’ contained in subdivision I. of section 422 of the Code of jure, ‘The language of the subdivision is as follows :—"*When ‘any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State,” of course membership in this society is not -‘a public office, civil or tg nor is it an office in a cor- poration created by the auchority of this State, Is it, then, a franchise within this State as contem; ‘by the section? In & general sense every corporate right is @ species of franchise. Membership is such and so is office. If the words ‘any franchise’ were intended to cover & mere perso right or privilege, then it is quite evident that the extension of the phraseology to office was surplusage. Office in » corporation is certainly quite as much a fran- chise as membership. If it was thought necessary to add a special sentence to cover office it stands to reason that membership would have been similarly treated if intended to be embraced. The purpose is apparent to limit the action, as an aid to mnere per. sonal privilege, to office. Full effect can at be ven = the expression ‘‘any franchise” by treat- ing it in thig connection ss referrii to one of the many classes of incorporeal hereditaments. To be a corporation is a franchise; so is the privi- lege ot making @ road or establishing a ferry (3 Kent, oth ed., p. 458) or a bridge. Its essence is a legisla tive grant, though in some cases it may be held by seacription, which presupposes a grant. Thus we Rave a harmonious scheme with provision—first, for public office; second, tor private corporate office, and third, for franchise. This construction is not only the reasouable view of the section, but 1t fol- lows the history of quo warranto and the adjudged cases, FUNCTIONS OF QUO WAURANTO. ‘The general function of quo warranto, both in En and this country, has been to check usur- pation of corporate oflice, corporate privilege or of the corporation as such. In the case of ‘The poopie vs. The Utica Insurance Company (15 Johns, 387) @ franchise was defined by Judge Spencer to be privilege or immunity of a public nature which cannot legally be exercised without legislative grant. He also lared it to be a species of incorporeal hereditament, and at page 359 he observes that “many cases might be cited in which injunctions in the nature of quo wakranto have been refused where the right exerc! was one of @ paris nature to the injury only of some dividual.” Following this case it was held in The People vs. Tibbits, (4 Cowen, $58) that quo warranto would lie against persons who usurp the right to be a corporation, because ‘to be # corpora- tion is a franchise.” What constitutes an office within the meaning of the section in question must still be determined by the general rules of the com- mon law. A fortiori, what constitutes @ franchise? It should be considered in this connection that quo warranto would here, even if authorized, be prac- cally inappropriate. Usually the relator is a rival candidate or claimant of the usurped office. The 147 gentlemen in question have no rivals. They are entirely innocent with respect to the methods Stoptel. If initiated and then proceeded against by the Attorney General it would be on the relation of no claimant of their membership. Would they, could they, be ousted and subjected to a bill of costs, merely because the society, through its secretary, had deprived @ single member of the right to voto? The answer cannot be doubtful, But even if the action would lie what practical good could result from such @ proceeding? The plaintiff desires a change in the management of the society, His object is not unlewful. In seeking that object he irpones scrutinizing the candidates for membership voting upon their admission. Now if the only remody be quo warranto, the persons elected would, long before judgment of ouster, have voted upon the junction restrain the exercise How, very question at issue, for no auxiliary it could be granted of the rights of de facto membership. then, can the remedy place it in the power of the secretary of tion, simply by 8 repetition of similar on the evo of every election of otters, Se perpetuate ey, the management. Even in Hart vs. vi Ris Mullingacknowledged that equity jurisdiction might attach prevent a failure of justice,” or “! reason of some considerations in the particular case, by reason of which the court of law cannot furnish lequate relief.” INJUNCTION THR ONLY REMEDY. Our conclusion, therefore, is, that the plaintiff has no remedy, certainly no adequate remedy at law, and thet in reality his only ies that which he claims in the present action. right, too, is in- dividual and personal. He asks no for a share ot the funds or property of the corporation. He seeks to restrain no corporate act with respect ‘thereto. Hin assoviates are uot necessary partics, nor neod he file his bill on their behalf, nor should he have asked the defendant to bring the suit for him. ie not the dof a, not the sachem’s, not the other members’. It is his, and it is sucred and inviolable, for it goes to the root of membership, Upon the whole, we are of opin- fon, both upon the tacts and the lew, that the plain- tiff is entitled to a continuation of the injunction, with costs, and that the defendant's motion to strike out should be denied, with costs, MR. SEWALL’S PETITION. JUDGE SEDGWICK BENDERY AN IMPORTANT DE- CISION—HE DRFINKS THE PETITIONBR’S BRIGHTS, BUT GIVES HIM NO BELIEF, Judge Sedgwick, of the Superior Court, yesterdsy rendgred his decision in the suit of Arthur L, Sewall against President Brayton Ives and the New York Stock Exchange. The action, as will be remembered, was brought by Mr. Sewall to secure his readmis- pion to the Exchange, from which he was expelled at the time of Bonner & Co.'s failure—of which firm he was the junior member—and also to restrain the de- tendants from interfering with hia free ingress to and egress from the Exchange Building. The follow- ing is Judge Sedgwick’s opinion:— DECISION OF THE COURT. As the New York Stock Exchange is composed of more than seven persons who are owners of and have an interest in property in common, snd who would be ligble to an action on account of euch own- ership and interest, the present action by a member in relation to his Steset i Shes sronesty 4 prog- erly brought gre the it detendant as presi- dent. (Chap. 465, Laws of 1851.) Tt seems clear to me that article 20 of the con- stitution of the defendant means that before a member can be expelled he must be found guilty by ‘8 vote of two-thirds of the members of the commit- tee presont, and that the attempted expulsion was void, This of itself does not give a cause of action. The illegal act must havo some relation tos right which the law can protect. It must appear that an inj: to prevent the de- fendant acting upon the ilk ex] ion will per- mit the plaintiff to enjoy somo substantial right ca- pable of present or future actual enjoyment. The complaint c! es that the defendant, under the pre- tence of the v ‘expulsion, deprived anid plaintitt of the power to enter said building or mart, to carry on such business as he may have to carry on, and has unlawfully deprived him of B. X which cost hin $2,000; has wrongfully and w deprived him of ‘the interest in Property as ‘aasociation may own, and has wrongtally and unlawfully de- prived him of all the rights and privileges ident to such membership, which oe, Very valuable to plaintiff and Core hg essential jo of plaintiffs buginess as ’ The testimony showed that the defendant did ex- clude the plaintiff from the enjoyment of any and every privilege of ® member, of & kind that would sctuty cere to a member in his lifetime, and did defences was that before Rhe expulsion and by reason of the intiff becoming insolvent he became, b; force od certain articles pf the constitu 4 ap Sprit thar ati ever} resent aL Kitaee vant of membershi, Hf end until he should settle with his creditors mrt should apply for readmission to membership. His readmission would then depend upon the vote of the committee or com- mittees to which Sqeloeion must be made. The testimony was that had not for readmis- ion and tuat had wot patds 0 shioment with his ra, was no proot that he had — means of mak one. hen yp there no present Fecogn| the constitution to apy for Foadtaiasion orto be readmitted. A mere of time will not bring him to such @ right. An injunction net caloy oe an ho yore would wt bere to enjo; go posseasion any advantages. Whi it my sade ote facts exist hag 1 RT ger pod of e secruing A him, and wi tion, a gy i from « contingent ja the jevt of my rig] a subjevt o1 right to go into whag the “Lo: Room ;’" second, that after the attempted Sapulsione and before » year had passed, hare wea 'a cols of the plaintiff's right of membership, The firat refers to a right that of itself is not in nature of property, has no pecuniary value, and an unlewful exclusion from it could be ory com| by dam- ayes. The second was not af injury to the pint, as from the ni ane are be fully reinstated without setting sale ealde, and any claim of right to @ resale would be repugnant to the foundation of this action, “nt te roe 1k the pointe Bed shed wot junction 't must be dismissed, “ALWAYS WITH YOU.” ‘Tho Hxnaxw has received from “R, 8." $1 tor 80 Broomo street; from Seventh N. G., $5 for fund, and from ‘9. B. 8. L. K." and “Meo,” for, Matiiow Mlanageo, Xo. 17 Ladiow GUMBLETON’S ANSWER. HE APPEARS BEFORE GOVERNOR ROBINSON AND DENIES THE CHARGES MADE BY THE BAR ASSOCIATION—“‘NOT ONLY UNJUST BUT BASELY FALSE”—¥UBTHER HEARING TO BE HAD TO-DAY. [BY TELEGRAPH TO THE HERALD. ] ALBANY, N. Y., Feb. 10, 1879. County Clerk Gumbleton was before Governor Robinson this afternoon in reference to the charges of malversation and corruption in office preferred against him, He arrived on the train at one o'clock, accompanied by his counsel, William A. Beach and Edwin R. Meade. The Bar Association was represented by Artemus H. Holmes, George De For: reat Lora and Charles McLean. Promptly at three o'clock all parties entered the Executive Chamber and the hearing began at once, Mr. Beach opened the ball by stating his client’s position and asserting that the charges were so general in their character that it was difficult to answer them definitively. When an official was made the subject of such serious charges he should be furnished with specifications, Mr, Meade then, standing, read the answer of the accused, The latter sat on a sofa behind him and Ustened to the proceedings that followed with the keenest interest. At the conclusion of the reading he presented a number of the official records of his office to the Governor. MR. GUMBLETON’S STATEMENT. Mr. Gumbieton declares that an ‘exact account of all fees, perquisites aud emoluments received by him or his assistants” has been kept, and that such fees were strictly legal; also that the books of the ofllce have always shown and still show when and for Whom cvery such service has veen perfornied, its na, tare and t fee charged therefor. All books of record are ready for the Governor's inspec- tion, and it is claimed that they have always during respondent's term of office “been open for inspection during office hours of each and every business day to each and every person entitled to such inspection and in manner as provided by law; and that such was the case at the various dates set forth in said specification.” ‘The respondent denies “that ne refused or would not grant the leave re- uested to examine the books, as alleged, and further shows that during the he has held said office of County Clerk the said Holmes and the other persons named in said specification at the dat also therein mentioned furnish the only instances wherein any disagreements, so far as he can recall, have arisen concerning the examina- tion of the books or records of said office,” cular answer and explanation of these cases is made atconsiderable length. “It has never,” Mr. Gum- bleton continues, “been the practice to report tees which were the | ching roperty of the clerk, but only such fees as nD tothe county. * * * In 1868, and ever since, instead of an itemized ac- count or copy of accounts rendered, the return has embraced a summary showing the totals returned from cach desk for the month immediately preced- ee It is reliably reported that the Comptroller in office at the time of such change exacted the modi- fied form of return, and refused to receive the re- turns in the voluminous form they had been there- tofore rendered, and insisted upon his right, under section 10 of said law, to prescribe the form in which returns should be made to him. Certain it is that the present form and manner of making such mont returns has been sacoupiaed, accepted aud adopted by Com percuiare Connolly, Andrew H. Green and tho present incumbent, Kelly.” A tabular statement is made in this connection of the brag d returns of moneys received by various county clerks and transmitted to the Comptroller trom 1861 to 1878 inclusive. Denial is then made that the county clerk “has at any time since he held the aforesaid office, habitually or otherwise taken or received, or caused or per- mitted, in bis office, to be taken or received, feos or compensution which were in excess of the amount which he is by law authorized to charge.” He does not claim that there hes been no ‘‘possibility of error or mistake but that there has been any disre- or wilful or intentional violation of law in any stance he emphatically denies,” The respondent “indulges a pardonable pride in the universal satis- faction expressed by attorneys with his administra- tion of his office, So tar from excessive fees being exacted, he frequently, in cases where the fees are his priyate emolument, reduces them considera- bly below the legal standard, and in other cases ex- acts no fees whatsover.” Answering the thirteenth subdivision, or specitication, Mr. Gumbleton “ut- terly and unqnalitiedly denies the statement that he refused, except upon the condition therein recited, to exhibit, on request or demand, any book or books so kept by him, either on the 25th day of January, 1879, or at any other time, and that such statement in every essential particular is untrue,” THE GOVERNOR'S REPLY. When Mr. Meade had finished reading he resumed his seat and all looked earnestly at the Governor for his reply. “The first question,” he said very delib- erately, ‘is whether the suswer is a denial of the specifications stated in the cherge. If it is 1 do not propose to try it, I have too much on hand to do that. If an issue is raised upon the material charges I propose to send it to acommissioner to hear the tes- timony and report as provided for in the law. Ican not sit here and try cases aud attend to all the other dutics that are imposed upon me just now, That is the first question that I want disposed of. If the anewer amounts tosn jon of the facts stated in the charges, or if it fails to deny them and you choose to go on and argue the question of removal upon that assumption Ican hear you at some other time, I could not now hear it through even if you were ready, But it there are auy proofs to be ua in the case they must go to a commissioner to be I will that I'did not carry the charges in my mind. [ read them when they were firat presented, and I supposed trom the drift of the answer—which is very long, and a deal of it, I should say, irrelevant as a pleading, ough we don’t stand very closely to the rules ot loadin here—my impression was that he intonded 5 deuy every allegation you make, whether of tact or of law. If the ans’ is such a denial, then the next step is a reterence to a commission “‘a CONFESSION AND AN AVOIDANG! Mr. Holmes said that he and his associates desired time to examine the answer, for the purpose of asver- taining its precise character. He believed that it was in many respects 8 confession and an avoid- nce, enete RB saee 2. few rere of reparation reply to s ix or sixty-eight prin Piges of an answer to © dozen ‘inted eo of charges, He believed thet the answer could be shown to be insufficient, It seemed to him that the books referred to should be placed at the service of the committee, and he particularly desired to see the data which composed the transcripts for the firet month ot Mr, Gumbleton’s term of office and for the last month of 1878, respectively, in order to seo whether the published ures were cor- rectly transcribed, and to learn whe had so transcribed. Mr. Beach replied that so far as the charges in general terms and without [eg vd alleged corruption and malversation in office, the answer was an explicit and full denial. In regard to the first five of refusing to these gentle- added various forme u charg men access to books, ho denied that but we have presented to Your Ex- celiency the circumstances under which thet denial ‘was made and the ryasous upon which it was founded, and tbe only question in regard to that matter before Your Excellency is as to the propriety and justice of the refusal.”’ MR. BEACH PROTESTS. Mr. Beach went on to protest against the Governor referring such general c! as had been made to commission, tor the purpose of rumm through the office of the respondent to find some food for the charges. The fucts, he said, were all present upon which His Excelleney’s ultimate judgment would be founded, and he (Mr. Beach) was not going to it whatever upon the Pe ion of fact. “in revard sir,” he continued, “to the request which col have made for license to examine our books, ; yo po kg ng Ming LC at len et u nt }» stand in the attitude in which they ao and pursuing this Fog meg ile they Jy Leeag ad ‘until this litigation is concluded, ey have accom oda- tion or kindness Mr. Vord here shook his head siguifican aternly, added, “Yes, res may shake your and you don't want it, I's . “No, we don't ask it you, Mr. Beach,” replied as Daack deelered that Mr. dec! the conduct of the gentle- men on the other side was improper, and he main- tained that their attitude with respect to their per- character wi it of sonal snd profpssional in the the revelations of the records which wo be ted, unworthy of both. on Ga.” and Mr. Beach, gi at him wi “I shall,” he said. present 5 “attempt to the respondont in his toward them iad Towert every one ot thelr cents: sarics and instruments, who have flooded his office for the last few mouths. ie no question of fact about it, sir; it is all there before Your Rx- oy Mgr res) rye has ol uitans to no end of litigation expense, is controversy hua boon suficlently conducted ug examinations aud judicial proceedings, all of which are before Your tpetiendy, to enable you to determine whether ho deserves your judgment of removal. He bs pow toask for an inunediate hearing. They been fivhting the Bar Association in the courts for mouths, and thought it was time the matter should be acttled, NOT A TRIAL. “That don't affect the proc here," said Gov- ernor Robinson, curtly. “I did not anticipate any- nie like @ trial or an argument this afternoon, If Thad I could not have given the time to it. It is due | to the case, it is due to the clerk himself, and it is | certainly due to the counsel who are conducting this examination, that they should have an opportunity to give a full and fair examination to this answer and to compare it with the charges. If they were not to do that I should be obliged todo it for them when- ever I could find time to do it, But that would be an opportunity I could not have made for some time. I do not propose in this case to try irrelevant issues or to try the characters of the complainants or the char- acter of the respondent, It is a question, as I under- stand it, as to whether the respondent has habitually violated the law in the discharge of the doties of his office, and I want to get at facts which prove eithor the affirmative or the ‘tive. aud: want to i—"We have not | shall say more | be lending his assistance to the to show the conduct and the motives of the respondent, and would be quite important in case there should seem to His Excellency to be on the face of the papers any trivial or technical errors in the more Felevaut matters. FURTHEK HEARING AGREED UPON. It wes ugreed to have a further hearing before the Governor ut two o'clock to-morrow afternoon. Mr. Holmes said that that would give the counsel of the association enough time to examine the answer. At the same time he would ask permission to look some hours before the hearing at the books introduced by respondent, ‘Every facility,” said the Governor, bringing his hand ‘down upon his desk with em- phasis, “must be afforded, or the examination shall go over till some future day.” MR. ERHARDT’S LATEST. HE REPLIES TO MAYOR COOPER, BUT REFUSES TO GIVE INFORMATION WHICH, HE SAYS, 18 ALREADY IN HIS HONOR'S POSSESSION. Police Commissioner Erhardt yesterday sent the following communication to Mayor Cooper regarding the charges which he made against some of his col- leagues in the Police Board:— New York, Feb. 8, 1879. Hon. Epwarp Coopes, Mayor of the city of New York Srm—I have received your letter of the 4th inst., in which you repeat your demand for a detailed state- ment of fats. Your first letter upop this subject was considered and treated by me as in effect a re- oat foruformal complaint against my associxtes, Ou now suggest that your request is for informa- tion, Permit me to recall to your attention the history of my efforts to inform you of the doings of the Police Department. There were three inter- views between us upon this subject in the early part of January, 1879; one at your office, January 1; a second at your office, a few days later, and the third at this office, January 13. At the first interview, which was very brief, I re- quested you to come and look into the Police Depart- ment, telling you that the department needed it and had not been looked into by the Mayor since 1876. At the second interview, which was also brief, I car- ried to your office a copy of the proposed street clean- ing contract, which I told you I regarded as a “wioked and iniquitous scheme,” and atthe same time I explained my reasons for my opinion and re- quested your influence to prevent it from being given out, On the third occasion you passed most of the forenoon at the Police Department, und our interview was quite extended. At this interview I in- formed you of all the principal facts, which you now ask me to state, leaving only matters of detail and erinnee resting chictly in the records of the depart- ment. You will remember that for nearly an hour, with all the earnestness and force in my power, I re- counted to you these facts, with specifications and particulars; that my statements were confirmed by another Commissioner of Police who was present, and that I was proceeding to point to you the evi- dence of the facta stated in detail upon the records of the department, when you seguanies that it be deferred until some future occasion, owing to lack of time on your part, then to pursue the investiga- ion. I waited for more than # week after these occur- rences before taking my action in the Police Board, and these were the “attempts to accomplish retorms quietly” to which I referred in my communication tothe Board. Atter that action had been taken by me and hud come to your knowledge I again called upon you, snd, finding you on that oc- casion too’ busy to converse with me regarding the Police Department, I suid to you that I would Pics GPR jae whenever you chose to send for me, and I left you with that understanding. It appeared to me that I had faitnfully performed my duty and had placed the means in the hands of the Mayor of this city, who alone can exercise the power, to rem- edy what seemed to me grave abuses, Tethe facts which Istated to you are not,in your judgmont, such that any duty is imposed upon you by law to take any action or to examine the record— evidence which I have offered to you—I can see no advantage in detailing them again wpon paper in the form of charge and specification. I can sce no effect whatever of such a course, excopt to take me outside the scope of my official powers into the rdle of a pri- vate personal prosecutor before you, who are your- self officially charged by law with that duty, if you deem that the case warrants it. That position I am not willing to assume. I have no private or personal contest with any members of the Board of Police. In short, I am officially your witness. I cannot be offi- cially and will not be personally a prosscutor. There is one matter not referred to in your last letter to me, but covered by the terms of your first mages for 4 statement of facts concerning which I tl 1 did not inform you, and to which, therefore, 8 part of the foregoing remarks would not apply. I refer to the inebriety of one of the members of the Board and its damaging effect upon the force. I am to furnish you with the” olars and the names of witnesses to these facts. This should, of course, not be done in a communication likely to be \amade public hetero you have determined to take any action thereon, Very respectfully, JOEL B. nhainbr, Police Commissioner. Mayor Cooper say anything r the letter of iret Erhardt, further than that na oud reply to it the proper time and in the proper manner, BREATHITT’S TROUBLES, KENTUCKY'S GOVERNOR INTERVIEWED. [From the Louisville (Ky.) Journal, Feb. 8.] The following report of an interview with Gov- ernor McCreary Wednesday night will be of interest to the people generelly; hence I give it in full: — ReronreR—I¢ it your intention to order the troops honie as soon as court adjourag in Breathitt ? Governor McCrearx—Yes, sir; but if the least dis- turbance occurs after their departure I shall order them back immediately and request Judge Randall, no matter how tired and worn out he way be, to con- vene his court again and try every offender. I know sending the soldiers is an expensive job, but it is my intention to break up lawlessness in that county st any se. The people of the country whall not say, as long as I am Governor, that the State is not co enough to enforce the laws on her statute books. I consider that I have the best information from Breathitt county, and I am fully couvinced that the murderers of Judge Burnett de- serve to be punished. I want to convey the idea also to every man in thé State that the law will be upheld in of ita majesty, and that troops will be sent whenever it is necessary to sustain the civil authorities. “Will you send a detail of men to Jackson when the June court convenes ?”” “I shall, most assuredly, As I said before, I shall to secure the punishment of Judge Burnett, and to secure that end the sending of the troops there in June is very have done since they went there in December ?” “I think they have done remarkably well. They have accomplished just about what I eeere they would this term, and I am well satisfied with the re- sult.” “You are right, Governor, for when I was here s month ago you were of the opinion that but one or | two men would be tried this term. What will bedone | with the prisoners in the mountains ?"" | “They will be brought along with the soldiers and | sent to Louisville for safe keeping. I have just for- paige on gr pairs of handcufts to Lieutenant Buck to be used for that purpose.” “What is your opinion of Judge Randall?” | “I think he is an excellent Bag and is doin, thing in his power to punish the guilty, He could do nothing there without troops. Any man would have pursued the same course be did when those des- peradoes ordered him to leave town. I have perfect | confidence in him,” The Goveruor is undoubtedly in carnest and has | no compromise whatever to make with any of the | Breathitt criminals. In order to set the wheels of justice to work in Breathitt, it was necessary to have | the co-operation of the troops, the Judge and the Prosecuting Attorney; but another thing was neces- sary which the Governor didn’t name, and that was— it was necessary that a determined Governor should ood work. The | people, I presume, are certainly satisfied now that a man of that stripe was at the helm, every- MISTAKEN IDENTITY. The report that General Lloyd Aspinwall walked a quarter mile with Mrs, Scott 4¢ Brewster Hall appears to be incorrect, as the General states that he has not been — the building since the commencement of the wi - CIty NEWS ITEMS, The secona ball of the Ninth place to-morrow evening at the ‘eut Lweuty-vixth street, Dr. J. G. Holland, of Scribner's M ig to lec- ture this evening on “Hobby riding,” in Westminster Church, Weat Twenty-second streat. This evening Professor H. Le Roy Fairchild will lecture for Lebanon Club on “Coal and Coul Mining” in the hall at the corner of Columbia and Stanton streets. A verdict of accidental death was rendered yester- day in the case of Fireman John Nash, of No. 517 East Fourteenth street, who died from injuries re- ceived by falling from @ wall to the sub-cellar at the recent fire in Worth street. asual monthly reception of the Young Men's oh hey ggg ar took place at Association Mall lust evening. rogramme was # very entertain- ing one end included readings b; tires, E. Lord, fag ed solo by Professor Keonan, and vocal selections y Miss Romena Charbert. ‘The representatives of seventy-one insurance com- Ret met yesterday in the rooms of the Board of ire Underwriters, No. 162 Broadw: ‘The plan re- rted = a ‘ial comimitteo for formation of & jarift ation was further discussed, but the meeting adjourned until Thureday without taking any definite action, The Executive Committee of tho Socioty for the Preven of Crime mot yesterday, Mr. William F. Mott, the chairman, presiding. The Law Cominittee operations of the society during the ing that the total amount of iuto court during the two iment will take rmory, No, 221 * SF ihsech explained thot tho matters tn dhe suswor it, explai auswer which the aoreace thought ievelevemt wore intended 25, 7 Censsaitton gave hours of gratuitous service the fortuix! NEW YORK HERALD, ‘TUESDAY, FEBRUARY 11, 1879.-TRIPLE SHEET. DISEASED CATTLE, ALARMING SEQUEL TO THE EXAMINATION OF THE COW SHEDS AT BLISSVILLE, L, 1.—WORK OF THE HEALTH AUTHORITIES—WHAT PRO- FESSOR LAW THINKS OF THE BLISSVILLE SHEDS AND THEIR OCCUPANTS. The investigation by the Brooklyn Board of Health touching the condition of the cow stables connected with the distillery of Messrs. Gaff, Fleiechmann & Co., at Blissyille, Queens county, and the report thercon by Sanitary Superintendent Raymond, published in the Henaty of Sun- day, have been instrumental in causing con- siderable excitement among the masses in brooklyn, From the disclosures officially made it is not a ques- tion of unwholesome milk alone which now disturbs the thoughts of a large proportion of the popula- tion of the City of Churches, but also as to who among them have probably been buying and eating diseased mest, With a@ view of correcting any evil in this respect which may be found to exist the Brooklyn authorities are adopting vigor- ous measures. 1¢ eppeats thet the SBoled of Health issues permit or license to milk dealers to purchase milk in Queens county and to sell the same within the limits of the city of Brook- lyn, the dealers certifying to tho fact that the milk sold by them, to the best of their knowledge and be- lief, is pure, unadulterated and is from other than swill fed cows. A violation of this permit entails the cancelling of the license. Accordingly detectives have been assigned by the Board of Police to watch the milk deslera holding such licenges and ascertain whether their cans are replenished at swill stables. One of these detectives has already discovered ten or twelve violations of this ordinance. Detectives were also busy yesterday trying to trace the disposition made of the diseased meat from slaughtered cattle at Blissville, which it is thought has found its way into the Brooklyn markets, In addition to this the efforts of the detectives are being directed to the task of as- certaininy where the objectionable milk has gone to, as wellas to the discovery of the results of both commodities upon the consumers thereof, WHAT THE PHYSICIANS SAW AT BLISSVILLE, While the authorities of Kings county are not an- thorized by law to interfere with the existing state of affairs at Blissville, they have full power to pre- vent the deleterious lacteal product of cows from being sold in the city of Brooklyn, where the mortality among children has of late been un- usually heavy. Sanitary Superintendent Raymond has said that on a previous visit to the cow stables of Gaff, Fleischmann & Co., about January 25, when he was accompanied by Dr. McLane, one of the con- sulting veterinary surgeons of the Brooklyn Health Board, they found among the beasts one cow having a temperature of 107 degrees, and evidently suffering from pleuro-pneumonia. On their next visit to the luce they say thatcow had disappeared, but whether Jor the Brooklyn meat market or to a secluded place away trom the eyes of the visiting officials, they did not know. DISEASED CATTLE AT NEW LOzS. Professor Law, accompanied by Sanitary Superin- tendent Raymond and Dr. McLean, a veterinary sur- geon, was yesterday engaged in examining cow stables in the town of New Lots, which, it may be stated, is outside of the Brooklyn city limits, and therefore does not come under the jurisdiction of the Board of Health. To a Heratp reporter last evening Dr. Raymond said:—We did not go to New Lots to see whether disease was amoung the cattle there or not, as I was already aware that pleuro-pneumonia had existed there for some time past, There are eight or ten large dairies at New Lots, some of them having as many as twonty cows. They are all-com- paratively close together, and the animals, when out grazing on the commons in summer, all mix more or less together, and in that way the disease has spread among them. We know that pleuro- pneumonia has been in that locality for the past two yours, and during the months of August und Sep- tember, last year, it was worse than at any time before or since. Some stables then lost three, four, five cows, and one, I think, lost as many as eighteen, some of the stables at present there are some cows that have got entirely well, but even those thet have recovered have portions of the lung solidified. Not- withstanding this abnormal condition of the lung I consider the milk of these animals pertectl; wholesome, In the different stables we foun‘ cows affected, some them quite badly, ‘with contagious pleuro-pneumonia, and some of these were being milked wives ied market pur- poses. I don’t know whether the owners of the stables suspected our mission there or not, at all events we met with no obstacle to our investigation. Of course, the question now is, What isto be done with these diseased cattlo? and I have no doubt that it will be speedily answered by the Governor, who has unlimited powor, under the law ot 1878, to re- medy the evil by either ordering the killing of the cattle or otherwise quarantining them.” A BAD OUTLOOK. Professor Law said last night;in to the cowsheds in Blissville, that the cattle could not re- main there more than a month before Per would be affected, “One of the symptoms of the ,” he said, ‘is the gradual failyre to give milk, the secre- tionary organs being affected in the commencement. Until the Blissville stables are burned down and the cattle removed to a more healthy locality the disease will continue to spread, and will no doubt cause serious damage to other stock.” It is the intention of the professor to make a thorough examination of all the stables, wherever he has reason to believe the disease exists, in Brook- lyn, New York, Long Island and the surrounding neighborhood, after which be will, of course, sub- mit his report to the Governor. NO BLISSVILLE MILK POR NEW YORE. Dr. White, of the Boardaf Health of this city, bas had his attention called to disorders among cattle in Long Island which were calculated to taint the milk sent into New York. From the investigation he instituted he learned that a number of cows in and about Blissville were affected. Accordingly he reported the result of his inquiries to the Health Board, who have taken mea- sures to prohibit the importation of milk from that quarter. The cows which were stopped at the Port Morris Depot coming from Connecticut were again examined gg ise Saad py ongetpe eight of them, found 0 sufferin, nm uro pneumonia, were slaughtered and sent to the offal dock, AN INDIVIDUAL INSPECTION. No. 134"Norta Tents Srnzer, PHILADELPALA, Feb. 9, 1879. } To Tue Eprror or THE Hrnaup:— I beg to congratulate you upon exposing that “pest house” of diseased animals, near Brooklyn, in to- day’s Henaup, under the heading, “Poison in the Milk Can,” as it is, indeed, adisgrace to any civilized country. I accompanied Dr. McLean, of Brooklyn, to this large cowshed or stable (adjoining the dis- tillery of Messrs. Gaff, Fleischmann & Co.), said to contain 800 cows, on the 25th of last month, and can testify to its filthy condition; also to the large num- ber of diseased cows in the last stage of contagious pleuro-pneamonia, tied by the head, incompany with other cows comparatively healthy. Wo tound the temperature of two or three of m (the diseased once) as high a8 107 Fahrenheit, the place was very badly ventilated, and the stench was sickening. On the 27th we made a t-mortem examination of one of them at Brooklyn (if the men are to bo be- lieved that brought us the animal at night from psc and found all the pathological anatomy of this malady present—viz., the ieft lung was very heavy, three parts of it or more quite solid; did not crepi- tate when cut into; the characteristic marbled ap- pearauce was well marked; the pleura of this lung was covered by a solid fibrinous exudation. The right lung was not much diseased, From informa- tion we received at and near Brooklyn I have not the Jeast doubt that meat trom such diseased cows is sold every day in the New York markets as primo beef. A dealer and butcher in New York told mo the “Yorkers” prefer this meatto the fat beet, as the swill fed beef is so tender and the butchers dress it to look well. JOHN W. GADSDEN, Veterinary Surgeon. EXPORTATION OF LIVE STOCK, Conflicting despatches wore recelved from England yenterday at the offices of the steamship companies and by large exporters of live stock in relation to the order of the Privy Council relative to the landing of cattle from the United States. At the National and Anchor lines the purport of the despatchos was that no restrictions had been placed by the English government on the landing of live stock, while, on the other hand, the London agents of Goldsmith & ‘Toffey sent their firm word it after the 2th of February the landing in any lish of cattle from the United States would bo prohibited. Tho explanation given at the British Consulate was that on and after March 1 all cattle coming from the United States would be permitted to land only on the condition that they were driven immediately to the slaughter house and killed. THE GAME LAWS, A meoting of the Society for the Protection of Game was held at No. 64 West Thirty-fifth street last night, Mr. Robert B. Roosevelt in the chair, The counsel for the society, Mr, Charles 8. Whitehead, made a report of the various prosecutions ponding for the illegal vending of game, of which there are very few, nearly all the dealers supporting the that he is law. Tho counsel also reported reparing @ codification of the laws relating game, to be sent to the ure, im com- pliance with the suggestion of e Governor in his annual a jo recommends no changes except the making close season for decr and all birds to begin the 1st of February instead of the 1st of March for some and the Ist of —— for others, a8 At present. A long discussion ensued, w was ticipated in by Mesars. Luddington, Halleck Ownsend Cox, Fleiss and Goleman.“ 'The elub in: ted the Committes on Game Laws to invite SEXTON TAKES THIRD PRIZE, HE DEFEATS MAURICE DALY IN PLAYING OFF THEIR TIE—A GAME LOOKED UPON As LOST, Won By 232 porns. The last game of the billiard tournament was played at the Cooper Institute last night, in the Presence of a fair number of spectators. The con- testants were William Sexton aud Maurice Daly, who met to decide « tie for the third prize. They played without umpires, In stringing for the lead Sexton was successful, and selected the white ball, He made 9, Maurice answering with 14. William weat to the table the second time, saying, “I guess this is going to be along game.” With the small contrie bution of 5 he resumed his seat. Daly failed twice in succession to score, and with @ useful 14 manip. ulated in bis favor, William’s string stood 32againat 14. Maurice, after half a dozen points all around, got the balls together at the bottom of the table and by rail nursing pushed forward to 52, when the nest was broken. Two or three brilliantly executed shots brought the ivories again in subjection, and Maurice once more marchr ing them along the rail they became “cold” ag 67, The player was of the opinion the balla were not “trogen,” but the referee decided against him. “It's a mistake,” persisted Maurice, “They don’t touch. Look again.” ° “Spot the balls,” cried Sexton. ‘The referee has given his decision.” “Let him look again,” shouted Daly; ‘they ain't within a mile of each other,” The referee made a very close examination and again deciding against the player, the balls were spotted and Maurice sat down with 9 miss from the string. The fifth inning ended with the game stand- ing:—Daly, 98; Sexton, 44. Failures te count and minor efforts marked the next three innings, but during tho ninth essay Maurice improved his position with 65, which pushed his figures te to vb, against 63, the total of his opponent. Sexton missed with 4 to his credit in his tenth trial, and re- tired fairly convinced that luck was not with him, He missed shots by a hair's breadth and left the balls somewhat easy for his rival, who was nothing loth to take advantage of the opportunities presented, It was now apparent t Maurice was in fine form, as in his tenth trisl he coaxed: the ivories to the rail and did yot give up the ship until 138 were put together. This handsome contribution to his score caused the figures to stand :—Daly, 308; Sexton, 67. The balls still worked awkwardly for the latter, and, no matter what he played, scoring to any measure of success seemed nnpossible. what he could he was 270 points the worst of it at the end of the sixteenth inning. In no wi disconcerted, however, he began his seventeenth attempt. Ho had evidently made up his mind to surmount the difficulties which seemed to beset his path. Compiling 6 points in open work, he grouped the ivorics in the upper right band corner and then set them suiling on a nursing journey along the to; rail. “Wake up. There they go!” yelled some in the back of the hull, And “go” they along the top rail, then down the left ‘side, and so on with a fair wind until the table had nearly been gone round. He was 187 pointe, and, ‘‘frecuing,” spotting was required, when, tailing to count, William sat wh sinid repeated cheers. So substantial a lift made his many friends feel better. The figures were now—Daly, 352; Sex- ton, 269. Unlucky misses and small counts for several innings caused Maurico’ figures to remain almost at 4 standstill, while his ‘adversary was rapidly improving hig position. In his eighteenth attempt William rolled up 20, the contribution being as good, from a scienti, fic point, as any in the game, Then with a feeble answer from his adversary William moved aguin very courageously upon the enemy, and before his uttack was ended matters looked particularly mining for him. Nothing now interfered with his brilliant strokes, After accumulating half a dozen all-round, the cushion was once more assaulted, and displaying much care pleasing success attended ‘the effort. The balls were marched steadily along the top rail, then, turning the corner, like an artist the player sent them in good style down the leit long cushion. “Go it, old man," shouted a strong lunged fellow in the back part of the hall. William did not look up, but at- tendil be bear me Seen ees com sit down. ‘The marker anno game as Sexton, 455; Daly, 355. In the absence of a strong reply from Maurice, the leader once more went to work, but he improved his position only wet, as, with 3, another chance was giyen Daly. The latter was in trouble. The luck which clung to him during the first of She peme now, deserted him, and ‘ormance wus of the most indifferent character. The end of the twenty-third inning showed the figures to be 462 against 355 in favor Sexton, Maurice having tasled to count. The twenty- fourth trial was commenced by William full of con- fidence. The rail was soon reached, and the official marker was kept busy cou the caroma, It wae « difficult task for 64 ts, as, being on the left side of the table, the position of the balls in their journey toward the top rail, required much lefthunded playing, | With the eighty-Afth point the. ivories were t out of the right upper cor- ner and sent back the way they come. The form of William in this effort was superb. There was no difficulty in doing what he pleased, and when 100 had been called his adversary knew all wasup, Without ¢ halt, and with much of his old steadiness, Sexton continued until 138 were made, which gave him the game by 232 points, in 1h. 50m, ‘The result seemed to please the audience, Following is the score:— Sexton—%, 5, 4, 14, 12, 5, 0, 0, 14, 4, 0,1,1, 1, 10, 2, 138—6u0. 187, 20, 166, 3, 2, 2, . Daly—14, 0, > 17, 0, O, 7, 65, 138, 10, 0, 8, 81, O, 0, 1, 2, 0. 0, 0, 13-368, Winner’ verage, 25; loser’s average, 16, PROYOSED NEW TOURNAMENT. Mr. H. W. Collender proposes another billiar@ tournament, to take place in this city soon after Lent. In making the announcement he says:— “Sinee 1873 the three-ball game on « 5x10 carom table has been recognized as the test for the cham- pionship, and the old American, or four-ball game, has been absoluiely abandoned by professionals, and to a great extent by amateurs as well, However, thia has now been so thoroughly mastered by those who lave made its peculiarities a study as to make possible runs and averages almost unparalleled in any of the previous modes of playing, and as it hag been heretofore, whea any particular form has be- come fayilisr to the experts, go now the pubiie once more call fora change and demand a new stylo of ame. ¥ Beliov: this demand to be consistent and im- ive, the undersigned inaugurates a rom pre-existing methods, sud announces a tourna ment for money prizes and embleme ii ive of the championship at the existing 6 and also at the “champion' e."" The object being to give an appropriate and deserved farewell to the system anda welcome to the new ‘champion's . i¢ is proposed to play a series of games according to the rules now in use, and adopted in 1873, and alsoe series of games according to new rules. These new rules will bring out all the scientific beauties of the game, and, while not debarring the so-called rail Last will restrict it, and enable each player to show distinctive skill.” WRESTLING, COLONEL M'LAUGHLIN AND PROFESSOR MIDLER MATCHED. * [BY TELEGRAPH TO THE HERALD,] Boston, Feb. 10, 1879. At the close of the athletic exhibition at Music Hall a week ago Colonel McLaughlin, of Detroit, is sued a challenge to Professor Miller to wrestle half Greco-Roman and half collar and elbow style. The challenge has been accepted and a match made to come off next Saturday night for $1,000, $500 a side, best two im three square shoulder falls. No hold will be allowed below the waist, and the legs can be used for ping. Tho inatch excites a good deal of interest in sport. ing circles here, as it promises to be novel in its style, and as both men are pertect athictes and eciea- tifle wrestlers @ bard battle is antici) The match will come off at eight o'clock Sati evem- ing, on the stage ot Music Hall. MME, LA CHAPELLE'S WALK. Sunes, Feb. 10, 1879. Mime. La Chapelle, at eleven o’clock this morn- ing, had walked 1,600 quarter miles in ae many quar ter hours, CHARLESTON RACES, Cuantxstow, 8. C., Feb, 10, 1879, Tho races aro still postponed on account of the weather. YACHTING NOTE, Yacht Ambassadress, N.Y.Y.C., Mr. W. W. Astor, from City Island, passed the Hrnatp telegraph ste tion at Whitestone, L. 1, yesterday afternoon, a route to New York. “HER EXPERIENCE.” Justice Walsh, Brooklyn, yesterday sentenced Mary Meadley, colored, to the Raymond Street Jail for a term of twonty-five days for having disturbed the Sunday evening services at the Talmage Taber. necle. The aceused insisted upon ben cares ve thy fea her “experience” before the requested that she be permitted upa —- — to relieve her Ly eee 9 th house, gave aa bis opinion that : rv