TIE STRUGGLE FOR REFORM. A] hecanse tf this Iaw ha unconstitutional you cannot bring Try AST RING INTRIGUE. dale AAR LAE Ll PAE B20 ae MOT TO ©XP'EL GREEN AND CONNOLLY FROM TE CONTROLLER'S OFFICE THE RING ANXIOUS ABOUT THE EVIDENCE: OF FORGERY CONTAINED THEREIN. Hearing a rumor that a plot was on foot to oust the present Deputy Controller, as well as Mr. Cone nolly, a Tripv se reporter called on Mr. 8, J. Tilden last evemng to obtain his views on the subj. ct. Mr. Tiiden was occupied with very important matters, but said that if the reporter would ask him any questions dircotly to the point, he would be pleased to anawer them. The following colloquy then ensued Reporte: —What do you know, Mr. Tilden, if anything, in relation to an intrigue said to be on foot to remove Mr. Connolly t Mr. Tilden ~There i8 such an intrigue, and the object of it is to get rid of Mr. Green as Deputy Controller. Itis concocted by men who know the real authors of the erimes which they, charge upon Mr. Connolly, aud who wish to divert public attention from the real anthors and cast blame on Mr. Connolly. Mr. Kevser stotes that nearly $1,000,000 in warrants wade out to him are forgeries as to his in dorsement. Now, the receipt of the money upon those vouchers is traceable, not to Mr. Connolly, but to the wen who «ro conspiring to attack him through the press, to intimidate him and force Lim to resign, that they may put a too! of their own in charge of the finan ves of this city, Reporter How long has thi2 intrigue been on foot 1 Mr. Till u—1t isa rencwal of the effort made to erugh Mr. Connolly by the robbery and burning of the vorehers vii*h took place some time since. It differs only in this, that at that time, the public kad rot the interest which they now have in Loopir an honest man ike Mr. Green in possession of the office where ha now has full and complete charge. The moment it became public that Mr. Keyser had stated taat these were forgeries of his name on ihe hoch of a larze amonnt of warrants, an attempt vaio torenew the attack on Mr. Connolly. Reo —For what reason, Mr. Tilden? For the pur pose of woting Mr. Green out of the office of Deputy Controller, and of screening the guilty parties to whom, when 4 comme investigation is made, beyond all doubt the receipt of the money taken from the Treasury upon these forred warrante will be traced. RK porter Do you now the names of the partics who comiticd these forgeries? Mr. Tiden—1I think I know who received the money, but 1 do not think the ends of public justice will be served 1y discussing that point now. Reporter-—The forged vouchers of which you have gpoken ave «imply the Keyser vouchers, and none othor{ Mr. Tiller —T1 alluded to them only. Reporter What names were upon there vouchers t Mr. Tilden-——Mr, Keyeer says his name is forzed. Leport 1 —Has any other name been forged upon these vouchera but hist Mr. Tilden—Not that T am aware of. Here the conversation ended, Mr. Tilden excusing him gelf from further questioning on the plea of important CRNLaLeents, a lI— IIAS THE PLAINTIFF ANY STANDING IN COURT —ARGUMENTS BY EX-JUDGE FULLERTON AND GEN. BARLOW. The case of Wm. F. Havemeyer agt. J. H. Incersoll cuiue up again yesterday before Judge In graham in the Supreme Court Chambers, on the motion to show cause why the order requiring defendant to ap pear and be examined should not be discharged. A long argnment ensued upon the capacity of the plaintiff to maintain this action, the defendant claiming first, that the plaintiff has no status in court; second, if he bas, it 18 not sufficiently shown; and, third, his papers are not suflicient to bring defendant into court and be examined, even if his right to bring the action be ad mitted. The case was finally adjourned till to-day at 11 o'clock, when it is expected the argument will be con cluded. Yesterday's proceedings were as follows: Ex-Judge Fullerton—If your Honor pleases, in order that we may be entirely regular upon this motion to vacate this order pe Mr. Ingersoll to appear and be examined, und make discovery, we desire to have an order to show cause to that effect, and I hand to your Honor the papers. Jiidge Ingraham—I declined once to give you that order. Ex-Judge Fullerton—It is made returnable imme diately, so that there will be no delay. Judge Ingraham—1I told you before that I would hear objections to this examination by way of answer, and that is the proper practice. An order to show cause is UnNecessury. Ex-Judge Fullerton—I don’t see that itembarrasses the proceeding in any way, but rather facilitates it. We want an opportunity to appeal, and perhaps the other side do also. Judge Ingraham—If you want to put it in that form for ng purpose of appeal, you may consider the order mundae. Ex-Judge Fullerton—That ie matisfactory. We then bring on this wotion to show cause why the order re quiring Ingersoll to come forward and make discovery should pot be discharged. Mr. Barlow then read the affidavit of George C. Barrett, which 18 as follows: EX-JUDGE BARRKTT'S AFFIDAVIT. Nau.jonz SrpreNE COTRT.— Wm. F. Havemeyer, a citizen, de, agt James H. Ingersoll and others. City and County of New-York, ss.: aeorge C. Barrett, one of the pleibtithy counsel berein, being duly sworn, bo hy by apter 150 of the Laws of 1870 the Supervisors of this county, of which Joseph B. Young who makes an affidavit herein is Clerk, are composed of the Aldermen of the city, with the addition of the Mayor aud Recorder. By the thind section of said aet the Mayor is the pre siding officer of said Board, and by the second section thereof be has a vote upon the Joma of any resviation ordinance or rot. This act wit wed pril 12. 1870, and the publica. tion of the accounts in the public journals of this oty, showing the amount paid out by the County of New-York for sapplice farmished to aud work dove upon the armories and New County Court-House. took place in the worth of July. 1871. as deponent is informed and believes. (‘he warrante ‘or such pavivents are signed by the Controller, counter ayyed by the Mayor, snd also by Joseph B. Young, Clerk of said Board of Supervisors, as Sxpruly Jrovided by Bection 6 of said act. By section 4 of chapter 382 of the Jaws of 1870. it was expressly pro vided that all lish ties ageiost tbe County of New-York incurred pre vious to the passage of that act should be audited by the Mayor, Ro troller, aud hs President of the Board of Supervisors, who was Willian M. Tweed now President of the Department of Public Works, and that sneh elalns should he paid upon the certificate of such tiree officials. It was under this suthority that a pert of the large sums were peid to the cCefendant, Ingersoli, “which the plaintif herein claims to have been frandulently gg That although such pub ).cation of such alleged frauds too Je July of the present car, yet deporent has not beard of anyt ing whatever Prous) hor) dove by the City or County or any of ite oficial departments, servants or agents, to recover back the enormous suins thus alleged to Lave been mir ryrel rieted, or to bring the alleged offenders to justice, nor even to ine tigate such matters, except that in the early part of Reptember, 1871, as deponent best recollects the date, a committee of 15 citigens was appointed to aet jointly with a committee of saia Sopervigors for the purpose of such investigation. That when said committee bad gone throuvh a part of the forwal investigation of hooks, and desired to commence the real inrestivation of the frauds, for which it was pretended that they weic brought togetter, to wit: the examination of witnesses they applied to sad Supervisors, as deponent is informed 35 believes, and as appears in the public journals ws a part of the proceedings of sad Board of Rapervisors. for permission or power to CIAMIDE witness throngh such Committee of sui’ Supervisors; suck application, as deponent is similarly advised. was viclently opposed. and a long and po paper read by ove of said Fupervisors, and the whole matter was then referred to a Hub-Comuitte, which bas not since reported, and said Citizens’ Com mittee Lave tot to this day received permission or power to so examine witpess, apd such power has thus practically been refused to them. at least for the present. Gro. C. BARKETT. Sworn to Lefore we, 10th day of Oct. 1871, Thos. J. M. Canivri, Com wissiover of Deeds. EX-JUDGE FULLERTON'S ARGUMENT. I suppose that the numerous and learned counsel on the other side do not pretend that their client has any stand ne In this court by virtue of the act of 1864, to which I shall in the first instance refer, and claim that it is un constitutional and void, and therefore gives no right to the plaintiff to prosecute this action. If this proposition be maintained, as a matter of course it ie the end of this Jroceading, because whatever frauds may have been committed on the City and County of New-York, I sup pose the learned gentlemen are 10 peek redress b JEopey means, and by laws that are constitutional and b nding on every citizen. I call your Hobor’s attention to the third section of chap. 405, Laws of 1884, to be found on page M45. I uced Ko uo further than to read the title to the act to prove the Droposiion that the nature of the third section is not contained iu that title and for that reason we Lold that it is an iufraction of the Recwision 10 which I call attention; in section 16 of article 8, that po private or local bill passed by the Legislature shall embrace more than oue subject, and that sball be ein Yraced in the title,” Now, the subject here is not €w braced in the title, nor ix it referred to in any way. Judge Ingrabuin—The power of the plaintiff to bring this action was discussed, I think, in the Foley Injunc Lion case. Gen, Barlow—Yes, Rir, it was decided after solemn ar Fupest that the plajutiff had the right. x-Judge Barrett—Mr. O'Gorman, who was on the other aide ip that caso, argued that very question with great force and ability, an Judge Barnard so decided. Mr. Root—Judge Barnard refrained from passing upon the question, because he was unwilling to hold the act uuconstitntional whos a motion of that kind. Bz-Judge Fulle is question, Bir, has been dis powed of iu this very Court. ExJudge LL #ir, in our favor, Ex-Judge We think not. Now, the Court may recollect the case of Christopher Pullman, who com guenced an action against the City of New-York for the urpose of restraining the execution of a lease one §erhando Wood of premises in Nassau-st. ln that case u Sutherland, after a solemn argument, gave an Sidon sustaintug the views we advocate here. (The «counsel here read from Judge Sutherland’s opinion in @upgors of Dis argument, aud said] We hold that this 1s authority here. Br-Judge t—That qupstion was fully argued oth as to whether the act bad not been reénacted in Joie: form, and 68 to whether J udge Rufyriand bad overlooked the decisious of the Court of Appeals, ExJ Fullerton—My friend is taining now de hors She re: there is nothing to show for it but the breath A 3 Saude Barrett—That is the case with the gentleman Ex-Juage Fullerton—The gentleman is mistaken. The fyivy rom which I A 1s signed by tue County Mr. Btoughton—We will hear yon in rezard to this. DE a guestion must be uct Low, THE INCFRSOLI SUIT. rain whether ha decided the question or not 2% 0° by tie other case, Tsball not attempt to ovorrule Ls do cision here, this detordant ints Court. Baraard M1. Stonchton—Yonr Honor would not atéempt to pro cond, whore there was a direct contradiction in the do cisions of two Judons of this Court, to say that either une was right. We suppose that your Houor will go on and hear it in that ease yoursotl. Jitze Ingrahuin—I shall consult Judge Barnard, as I sand. A QUESTION OF CONRTITUTIONALITY Le-dulee Fallorton—As was about to observe, this View of the case does nos stand alone upon the decision 1 have just read. Your Honor will regolleot the case in which Baldwin and Cox wero concerned. The Controller was authorized by tho statute to institute proceedings to set aside fraudulent judgments obtained against the or dion yn the or noriy conferred by statute, ho mide a motion to sct malde the judgment in that case, and we mado the objection tat, in the act of 1863, there wis inserted a provision to tho effect that the Counscl to the Corporation should zlone nd for and represent the Corporation. The Ger Term held that that law was unconstitutional! an: 0 ourt of Sppeaie affirmed that decision. And this 1» 00 exactly in Fat, There ono distinction, however, to ween the action they seek to maintain here and the case of Foley referred to. The obfcet of the bill in this case is not, as it was in that, to provent waste, but to recover baek money which, it is alleged, the city has been defrauded of, Now, nccording to the terms vo] the act of 1864, if it be constitutional, the plaintift has the right to bring his action to prevont waate, but that 18 not this case, So that, oven if this act be regarded as having any binding force, they still do not maintain their posi tion in this tribunal. This order ia an attempt to ot) the advantage of the remedies provided by sections 359, 390, and 391 of the code in one Ne Section 388 of the code says, “The examination of defendant may be had at any time before trial, ete., but the party to he ex amined shall not bo compelled to attend in any other county than that in which he j resides.” Beo tion 300 says, “a party may be examined, sub ject to the same rule of examination as any witness who testifies.” Now neither section 391 nor the two preceding sections havo any reference to a proceeding for the discovery of books, papers, or doen ments. There is a separate, independent regulation con cerning that, which says that the Court may order the party to permit plaintiff to take a copy of any hooks, papers, or documents relating to the merits of the ac tion. Now, rules have been adopted by the Judges of this court to effectuate the remedies provided for by these sections, which state that the application for an examination shall be upon aflidavit disclosing the nature of the discoveries sought. Judge Ingraham—I think the judges understood what they were doing when they made these rules. Mr. Stoughton—We intend to put it to your Honor whether the rules can overrule the decision of the General Term. Ex-Judge Fullerton The words added to the rules, «and that there are entries in the books and papers of which he seeks a discovery,” are significant. Now, the gentlemen on the other side do not present aflidavits to meet the exigencies of Rules 18 and 19, disclosing the facts and circumstances which they are bound to discloge in order to get a discovery; but they seck to compel this defendant to bring his books and papers into Court with out them, thereby avoiding the rules of the Court re ferred to. 80 far as this is to be regarded a8 an examina tion betore trial, it is met by the objection that they can vot do so betore issue 18 joined. The decision in the case of Bell agt. Richmond, 50 Barbour, 571, mects this point squarely and fairly, and disposes of it. WHAT A CESTUI QUE TRUST CAN DO. The speaker read from the affidavit of Mr. Havemeyer to show that nothing was asserted in it except upou in formation and belief. Your Honor, he continued, {3 not juformed that the facts are going to establish such be lief, und are not informed that there are any facts. In other words, the affidavit does not meet a single one of the requirements of that rule. It is not pretended to be under it. They sock to evade it, and I trust your Honor will not countenance an jiseinpt to accomplish their purpose by such means. Your Honor will perceive that secon 988 of the Code is the only one which provides that anything may be done to enable a party to frame his cemplaint, and, there fore, if they seck anything for that purpose, they must pursue the remedy under that section, and under that section alone. Now, we will suppose again, for the sake of argument, that the statute of 1864 is coustitu tional, and that that section is to be enforced then how do the parties stand A eestui que trust can file a bill over the shoulders of a trustee only in certain instanees, 4 First, where a trustee is in complicity with the person who is charged with the fraud. Second, where the trustee as neglected to bring an action for the purpose of presorving the trust property after the facts have come to his knowledge. And third, where he refuses to bring an action, having been requested to do so, and having the facts and cir cumstances within his knowledge upon which an action may be brought. The case of Bate agt. Gray, 11th New York Reports, was cited in support of this proposition, the authorities therefore are and have stated them, that the eestui que trust cannot flle a bill in place of the trus tee unless the trustee is in some way derelict in his duty. The question is here Jrestn ed then in what respect the trustee in this case, the Mayor, Aldermen, and Conmon alty, or the Board of upervisors have been derelict in duty, and what evidence has your Honor of that fact! I will refer to the only clause in the afidavit on that suljeet, r. Fullerton read from Mr. Havemeyor's affidavit the allegation upon information and belief that the Mayor and Aldermen and Board of Sapery wors had will fully and collusively omitted and neglected to take any steps to recover back the money alleged to have been fraudulently paid to Ingeraell, aud coutinued: The question is preeented to this Court in this controversy whether any steps will be taken to further this proceed ing on the ground that the Board of Supervisors and the Mayor snd Aldermen have willfully aud collusively omitted to take Slepe to recover back the Jolie} sald to be taken by Ingersoll. Upon what would such an adjudication take place Mr. Huveweyeris avery good citizen, but his judginent is not to be substituted for the Jidnuent of the Court. If be has information leading im to believe that they have neglected their duty, that 18 not sufficient. Your Houor must determine that ques tion—the facts must be laid before you, and you must pass upon them judiclaliy: and be forced to the conelu sion that they have will hy neglected and omitied to discharge their duty If it 18 to go forth from thus tri bunal that such a thing is found, and that judicial action is predicated upon it, it must be based entirely ng the information and belief of Mr. Havemeyer, and what that information was, or upon what that belief was founded the world is not informed. The trustee must be not only derelict, but must have willfully and collusively Toglected to take any steps to perform that duty; and before this tribunal hall proclaim to the world that the gentlemen holding these positions of Su pervisors, and Aldermen, and Assistant Aldermen of the City and County of New-York have been guilty of such a charge, there ought to be some fact before the Court to warrant such a conclusion, The tie has not come when we try cases upou ruwor and public accusation. The tiwe has not come when we can compel men to come into Court and testify in reference to his private "accounts upon the strength of what is fouud iu the col umns of a lying and licentious newspaper. RUSHING IN WHERE O’GORMAN FEARS TO TREAD. Mr. Havemeyer could have stated in what respect the Aldermen and the Board of Supervisors have been dere lict and failed in their duty. He was not unaided by counsel, and had 69 associated with him, all auxious to punish Individuals who had perpetrated a fraud. He had access to the Controller's books, had the aid of the new and zealous Deputy Controller, and had everything at his hand to enable him to find out in what respect they had failed in their duty. And if he has found anything to warrant judicial action, then why not state it? 1 think we may draw the inference, in the absence of any circurnstance or fact, to warrant such con clusion, that no euch fact or circumstance ex isted, or our friends on the other side would have seized on it and placed it in that affidavit as the foundation of the order, instead of mere rumor as false as that place not mentioned in polite society except by clergymen. I stand here to protest against the Deaton that a man may be compelled to come into court to give testimony in a case like this Cy the information and belief of one who withholds that information from your Honor. The time bas not arrived when such things can be done. My learned friends, they are a quintuple, I beheve, who have laid aside, as 1 eal all other PLoletsivng) business in order to hunt down men who ave perpetrated frauds upon the City Treasury, and I hope they will meet with fool success, had access to the Controller's books and to files of the newspapers, and had the aid of the Committee of Beventy and another committee of lesser numbers, and after investigation trow July last down to October, 1871, what facts are they eee oft Why, they are constrained to come into court with an affidavit, claiming that during all this lapse of time they have falled to collect facts enough to form a SOITIALEY n this action, and they cannot proceed for want of information. Have ney been Sevelict in their duty?! I take it not. et with all this ignorance, they turn upon the corporation and say ‘you have mot done your duty,” and accuse it of dereliction of 3 duty for not doing every bv ESE ow ly 9 ~antta WNoamwe wrrivier $22 AAA ams rr aan FNP ATACRAIG SET SR WER WIDE TRL AC NIG ICC a a oar wey eT. as that place not mentioned in polite society except by clergymen. I stand here to protest against the Doria that a man may be compelled to come into court to give testimony in a case like giles upel the information and belief of one who withholds that information from your Honor. The time bas not arrived when such things can be done. My learned friends, they are a quistiple, 1 beheve, who have laid aside, as I understand, all other Jroetsivna) business in order to hunt down men who ave perpetrated frauds upon the City Treasury, and I hope they will meet with fool success, had access to the Controller's books and to files of the newspapers, and had the aid of the Committee of Beventy antes committee of lesser numbers, and after investigation trow July last down to October, 1871, what facts are they don oft Why, they are coustrained to come into court with an affidavit, claiming that during all this lapse of time they have failed to collect facts enough to form a SOITIALEY n this action, and they cannot occed for want of information. Have ney been relict in their duty?! I take it not. et with all this ignorance, they turn upon the corporation and say ‘you have mot done your duty,” and accuse it of dereliction of duty for not Sotng every thing which they have been trying to do, and have not done, because they have not the information necessary to accomplish tbe end. 1 say it 18 unjustifiable, and cannot be maintained. We have evidence in this case that the corporation of New-York are now engaged, and have been for a long time engaged, in getting at the facts necessary for a prosecution of the same char gelves within section 391 of the Code. We first state the nature of our cause of action; i. e., to recover money acter. We have the affidavit of the Corporation Counsel that he has consulted counsel and investigated and done what our friends ou the other side have done, with the only difference that they have cowminenced be fore they are ready, while he don’t RIopose to commence until he ie ready. to paraphrase what our friends have often quoted, “they rush in where O'Gorman fears to tread.” If Mr. Havemeoyer had scen fit to put in his affidavit the facts and circumstances, if any exist, war ranting him in making this charge hiulust the Corpora tion of New-York aud the Board of Supervisors, Jour Honor might have determined that it was insufficient, and I protest agains} the substitution ot Mr, Havemeyer's Jjudgwent for the judgment of the Court. stolen from the city by Ingersoll, then we disclose the nature of the ohject sought. Then the Court will see complaint, and we sweur in our affidavit that it is wate rial. That is all that is required in this rule. not entitled to information for the sake of bringing in other parties, because, a8 he says, it would be another action, and all the discovery we are entitled to is in this might adopt the suggestion of my friend, He sald we bad not put into it our summons. Now, if that is neces sary, your Honor can do it on the spot. Theu my friend says the allegations of this affidavit are on tion and belief. He contradicts himself. He first sald we didn’t know enough; he now complains that we know Mr. Stoughton cited, 1, Walworth, 417, and, 8, Wallace, 73, 1n support of the points made, and claimed that there was no case to be found where a cestui que trust can sue, except for the purpose of enforcing a pre ventive remedy. too much to entitle us to relief. 8ald your information was fsuclent to get a standing in Court, but if you had a standiog in Court your mation was 8 fent to form a complaint. Ex-Jadge Barrett—1I Ssa there is Do case where the trustee himself paid out the wouey, aud where the trus tee cannot be removed by law. lerton’s speech, but was interrupted by the latter, who Ex-Judye Fullerton—We have no guessing as to our cases, and they do mot exist in parole, like Judge Bar nard’s, either.” And if Judge Barnard’s decision Js cor newspaper, If the remarks in that r wre what your lunatic asyluw.” Laughter.) rectly given in THE TRIBUNE, he did not puss upon the coustitutionality of the law of 164. Ex-Judge Barrett—I hope THE TRIBUNE {8 not the pa per counsel referred to ‘as ying and liceutious,” else it would not be proper for bim to quote from it. ment by two counsel would be consl bait au hour at that, Mr. Stoughton said he haa no de Mr. Bwughton—I sm a citizen and tax-payer, and I think the press have done great service, Ex Judge Fullerton—80 do I, and wish them all sue cess. All that I claim is that after the press have dis covered these frauds, these gentlemen should not attempt to convert this Court into a town meeting, nor iuto a Vigilance Committee for the purpose of Baving a trial in that way. We want the ordinary mode of Pr suing a trial. If Ingepeo)) has ocommi a wrong, let bim be punished. If be has taken mouey fraudulently from the City Treasury, it should be recovered, but let it be done according to the laws of the land. A violation of law in giving a rem edy would have a far worse effect upon the corumunily thin the loss of the treasury of the LiLy und County to gether, Now, we claim that the plaiutitt has no standing Ww lowrt; Urst, because the law of 1864 is nnconstitu sire to speak more than thirty minutes. Gen. Barlow io. 004 10 Je turned out of court. n on this moti w~I can't turn anybody out of court x-Ju Fall Wi Fl Ho pd question is whether you are wk an tou—I hope the Court will excuse me for say ['s al when I find an ajiblication like this sought decision of the a ertind vr Yury Pus Coujunction with Judges Buruard snd Cardozo, that such NEW.YORK DAILY TRIBUNE, THURSDAY, OCTOBER 12, 1871. CL WEI YIEIRAIR vi WF YIN CN YDTTINGS PYROS ry INTE EN, a 2 a does pot show facts and olroumstances showing Hight Ww come into Court. He has no more right, nooording the facts Yeveloped, to stand in Court to prosecute this sction than if he alleged that he was a subject of Hor Majouty Quoen Victoria. There ia another point, which i, that uwocording to this affidavit there are facts and circumstances enough to frame a complaint, and they do not need anything heyond it. [It states the amount of money which has been taken from the treasury, who obtained it, and upon what pretense it was htained. third, he has shown no right w be here what Ex-Judge IMullerton read Judge Barnard's opinion in the Foloy caso to show that he did not Ja upon the constitutionality of the law of 1864, anc olaimed that Judge Lurnard must have held that he could maintain the action at common law, GEN. BARLOW'S REPLY. Under Section 391 of the Code, the defendant, by his counsel, comes here and raises various objections to going on with that examination. He baa raised Aub stantially three objections to our proceeding with this examination: First: ‘The plaintiff has no capacity to sue; that is to say, a8 6 resident and tax-payer of this city he has no standing in Court. Second: If ho has a standing in Court, it 1s not sufficiently alleged or proved, or rather that it 48 disproved, by the affidavits on the other sido; that the condition precedent of his right to bring an ac tion—to wit, tho refusal of the Trustees, Rupervisors, and Common Council—is not sufficiently alloged. or, if it be, it is disproved by their affidavita. Third: They say that apart trom these two questions, our papers are not sufficient to bring this defendant into Court and subject him to this examination, Now, has this plaintiff any capacity to suet I submit that the question cannot. be raised, and that your Honor will not entertain it at this stage of the case, which is a mere preliminary stage, The Code provides that whero the ohjection to the ya CBRE ty to sue appears on the face of the complaint it shall be raired by emurrer, that where it does not it shall be raised by answer, and we submit that it can only bo raised under the Coden one of these two ways. We think we are at least safe in saying that your Honor will not at this stage turn us aut of Court, unless it 18 per feetly plain that we have no standing in Court. If there is any doubt, we submit that your Honor might decide the question now. Now my loarned friend as sumed that the only ground of standing In court on the ground of complaint is not sufficiently alleged, or if it be It is disproved by their aftidavits, Third, they say that apart from those two questions, our papers are not sutli cient to bring this defendant into Court and subject Lil to this examination. THE PLAINTIFF'S CAPACITY TO SUE. Now, has this plaintiff any capacity to sue? TI submit that the question cannot be raised, and that your Honor will not entertain it at this stage of the case, which is a mere prelimininary stage. The code provides that where the objection to the plaintif°s capacity to sue ap pears on the face of the complaint, it shall be raised by demurrer: that where it does not it shall be raised by answer, and we submit that it can ony be raised under tho code in one of these two ways, e think we are at least safe in saying that your Honor will not, at this stage, turn us out of Court, unless it is perfectly plain that we have no standing in Court. If there is any doubt, we submit that your Honor might decide the question now. Now, my learned friend assumed that the only ground of standing in Court on the ground of the complaint was under Section 3 of the Tax Levy of 1864. We don't rig entirely upon that. Our firsf proposition is that under the ceneral principles of common law, or of the Courts of Equity, we have a right independent of that statute to come into this Court for this relief, under the circumstances suggested in the affidavit on which we move. 1f the money of a corporation is stolen or fraudu lently taken, the injury is to the corporate bodys and not to the citizens thereof, just as in this case, if the money of the city has heen appropriated, the injury haa heen done to the wi, and not to the tax-payers. That ix of course admitted, but in regard to private corporations, the principle prevails that, on an allegation that the persons who have the right to bring the suit in the name of a corporation, refuse to do 80, that they are themselves the guilty persons, We shall be told that the Court of Appeals in this State has decided, in the case of Roosevelt agt. Draper, in 23 of New-York, that a citizen and tax-payer has no standing in court. Now we submit that that case does not cover this. In the first place, this suit of Roosevelt aut. Draper was brought by Roosevelt alone, in his own name as an individual, not on behalf of the citizens and tax-payers. Secondly, the city was not made a party de fendant. There was no allegation that the CRY officers had refused to pursue the gilty persons, Tt did not ap pear that the same City Government or city officers who made the fraudulent conveyance were those in power when the suit was commenced, and that, therefore, there was 110 neglect or omission to sue on their part; that was not a case where the city had refused to puto the guilty, and therefore the one element of right of eestui que (rusts was wanting. Now the Court says the plain: {iff didn’t sue on behalf of others, The Corporation rep resents the interest linble to be aflected by the remedy sought, hut the plaintiff’ does not represent the whole public. We sue on behalf of every one interested with us. Now, what becomes of the familiar rule of courts of equity that Where there 18 a right there i3 a remedy” if in such a cuse as we male here we are told that the tax paver has no remedy whatever short of the remedy by election t Now, we come to the ¢lanse iu the Tax Levy of 1834, Section 3 of that act is not within the constitutional pro vision that no private or local bill passed by the Legisla ture shall contain more than one subject, and that ex Jyeased in its title. Your Honor held in Phillips agt. the fayor and one or two others that, inasinuch as certain provisions of the Tax Levy related to State Boards and Commissions, created under the authority of Btate laws, having jurisdiction outside the city and county, the act could not be considered local. This relates to the szme Boards. Further, even if the act of 1864 he local, section 3 is not local but general in its nature, and I call your Honor's attention to two cases in the Court of Appeals, which have well settled the law on this subject. The People sagt. McCann in 16 N.Y. There it was Leld that although the act and its title was in the main loeal, yet thers being init a sep arate section providing for the course of procedure ju the Oyer and ‘Terminer and the Court of Ap peals in this State, that section being general wax not contaminated or aftected by the localness of the other parts of the act, but was to be considered as though it ttoog Dy itself, and then would be good without auy title at all although in the general act. That principle was carried out in The People agt. Williams, 24, N.Y. Now those two cases have never been overruled, and they decide that one section ix not ewbarrassed by the other sections of the bill provided the section you are consider ing 18 in itself general. HOW TAX-PAYERS ARE AI'FECTED. Now then section 3 is general, although the party de clared to be a cestui que trust wust be a resident here, itis manifest to vour Honor that the interests of various per sons residing in all parts of the State may be allected by this section 3. Everbody who pays taxes in New-York, wherever he may reside, whether in the State or out of it, has an interest in this provision, which gives another tax-payecr, who lives here, the right to call these persous to account for the Wisapproprishiol of trust funds. Again, it affects property outside of the city, to wit—the city owns property in the County of Westchester and Putnam, and if that is Risppropiaes hy the Bupervis ors or Common Council, there my exists the right to pursue that projerty outside the vity. Buppose our Police or our Board of Public Works by reason of such misappropriation should come to a stand still, a danger which is actually threatening us, is not every citizen who comes to this State wg interested But yet, if this act is local and section 3 is local, your Honor can only declare it unconstitutional pba of the act contains more than one subject, and that be not ex Jreased in the title. The title authorizes the Supervisors o raise money for the CoTSioratich and city, on yh raise money for expenditures therefor. Now, section 3 1s ger mane to the rest of the bill, that is, it relates to the ex penditure of money authorized to be raised. [Counsel recited tne case of Sharpe agt. the Mayor, decided by Judge Ingraham.) The argument that this section 3 has a general provision an regard to the expenditure of money is bad, whereas it would be good if restricted to the moneys of 1864, The answer to that 1s that the title to this bill is perfectly general. In regard to the examination of this defendant, all that is required is section 891. It used to be held iu the Superior Court that no order at all was necessary to bring in a defendant to he examined under this pons’ og Of course then no affidavit 18 necessary. Now, this new rule (21) settles those two points. 2 that rule it wds provided that there should be an a davit and an order, and that the examination could be had in order to fur nish information for the preparation of a complaint. Now, my friend says that your Honor—in the face of the General Term decision, that this examination can be had before issue—canuot be governed by that rule. Now I say these are rules of the Court ex pressing the sentiment of the Judges of all the Courts all over the State, and while it is very proper for a Judge at Special Term to be guided by a decision of the General Term, yet it is going too far to say that in no case, how ever erroneous shat decision may have been, or what ever facts may have come 10 Haw since, that the Judge at Bpecial Term cannot anu will not, under any General Term decision. Buch decisions are constantly decided against at Special Term. The Moll My lio sit Asm: a naamtratiaotiiom 7a) Qa an examination could not be had until after the iasus wag jaiued.