api Return this book on or before the Latest Date stamped below. A charge is made on all overdue books. U. of I. Library Tac HOT’ aY OF Tht MRIVEHSITY GF IhkIRoIS TO THE t fue - hime & So WA evnre DISASTER TO THE NEW YORK CENTRAL RAILROAD. DECISIONS OF THE GENERAL TERM OF THE SUPREME COURT, IN THIRD JUDICIAL DISTRICT, SEPTEMBER, 1859, — oor ee ero Standing in a column of decisions just announced, undis- tinguished from ordinary adjudications by this tribunal, are certain ones which, nevertheless, are remarkable enough to entitle them to special notice. They are stated thus: “In the Matter of the Application of the New York Centrau Raitroap Company to vacate the award made between said Company and Georee H. Cruarx. Order of Spe- cial Term, denying motion to vacate, affirmed.” “In the Matter of the Application of Grores H. Crark to confirm the award between said Clark and the New York Centra Raitroap Company. Order of Special Term, confirming award, affirmed.” Z@ © Georce H. Crarx agst. Tas New York Centrau Raiiroap oe AD’ od, x Company. Judgment entered on award of arbitrators, affirmed.” It is always agreeable to contemplate Courts of Law in- soterposing to protect one individual against wrong and injury 726631 attempted by another, but the feeling is raised to admira- tion when such tribunals use the power confided to them to save private worth from oppression and injustice at the hands of associated wealth and power. ‘To rouse the grati- tude of the public, as well as its applause, because of these heroic decisions, and also to admonish such Corporations as are accustomed to have money not to attempt to withhold it from private persons notoriously honest and greedy, a brief history of the attempt at fraud in the cases in question, and of its signal defeat by the Judiciary, is appended. Stock- holders in the corporation implicated are not expected to read it. In January, 1853, Elisha Morse, of Waterford, Henry Patrick, of Rome, and one Merrit Potter, purchased from Messrs. Huntington, of Rome, a lot of woodland lying on both sides of the Rome and Watertown Railroad, some three miles out of Rome; from which lot they cut about 50,000 cubic feet of lumber, between December, 1853, and March, 1854. In December, 1854, they sold the land to George H. Clark, of Schenectady, but Henry Patrick, after the sale to Clark, cut and removed about 115,000 feet of hewn and round tim- ber. One-third of the wood on the lot was thus cut into timber ; and, as a matter of course, the wood so cut was the very best on the track. The New York Central Railroad had been sagacious enough to choose its Superintendent from the very city which Mr. Clark had had the taste to select as his abiding place—Schenectady. A city honored by the venerable Dr. Nott for fifty years, it is submitted, will relieve any man from explaining how or why he came to live there. The Court seems to have appreciated properly the coincidence of locality. It is not surprising, therefore, that the Superin- tendent, oppressed by the duty of furnishing material for the consumption of the Railroad Company, finding he could do ‘Si more to that end there than elsewhere, did buy wood in Schenectady, and from a citizen of Schenectady. In November, or December, 1854, the SuperinrTENDENT OF THE Centrrau Rartroap, Mr. Vissarp, made a contract with Georce H. Cuark, by virtue of which CLarxk was to deliver to the Company, from the lot in question, a quantity of wood; not to exceed 12,000 cords per year, at the price of $3 per cord— the wood to be delivered upon the lot; to be suitable for the use of locomotive engines; sound; properly cut and split, and free from small limbs. It does not clearly appear by the testimony, whether this contract was made before or after the purchase of the wood lot by Cuiarx, which was in December, 1854. Mr. Vissarn’s memory of the time oscil- lates between November and December of that year, which is unfortunate, seeing pen and ink is not used in Schenectady, “between man and man,” business of a certain sort being done there “upon honor.” It is curiously illustrative of the primeval purity which subists in that city, that a contract of this magnitude between two of its citizens needed not to be put in writing, and therefore was not. So beautiful an ex- hibition of mutual trust and confidence carries the mind of the profane back to the age of chivalry, but the pious will scarcely halt in their meditations this side of the Fall of Man. If Mr. Vissarp had bought wood in Paradise, his con- tract with Apam would have been in this form. The Court seems to have been overwhelmed by the moral beauty of the transaction and marked its approbation of verbal con- tracts, made in Schenectady, by giving to this one a force quite beyond the power written contracts command. Can it be that the Valley of the Mohawk is the ancient Eden—is Union College itself but a sucker “ from the tree planted in the midst thereof ?” It was obviously proper that for a “’pon honor” contract a’pon honor “ Woop Measurer” should be provided; and such an officer had been added to the staff of the Central Railroad Company. It was quite as proper that the city of refuge for honest men, Schenectady, should be drawn upon to furnish an incumbent for the new office; and furnish one she did, in Mr. Perer Dorscu. Saturated, soggy, dozy even with that solemn warning to all measurers, that, “such measure as ye mete to others shall be meted to you again,” he so measured that, if the promise fail not, he is heir to the most stupendous of wood piles where the poorest will be rich at least in fuel. The contract and he seem made for each other. The Paymaster of the Company appears not to have been a Schenectady man, and after the custom of the world outside of that city, required vouchers from CuiarxK for such payments as might be made to him. But for this innovation by the Paymaster, the business might have gone on indefin- itely, as it was begun, without any indebtedness whatever to the art of writing. The Woop Measurer, whose salary is not stated and was perhaps the subject of another verbal contract, made in Schenectady, conformed to the requirements of the Paymaster, and set his hand to certificates, that he had in- spected and measured 238,397 5° cords of wood, delivered by CuarK to the Centrat Raitroap Company, between January 5, 1855, and December 20, of the same year! Upon these certificates, endorsed by Vipparp, Ciark received from the Company the sum of $69,504 78 ! Crark’s zeal to deliver wood to the Company is most conspic- uous, when what he did in that behalfis contrasted with what his contract required him to do. Upon his delivering 12,000 cords in a single year he might have betaken himself to the repose which so severe labor could scarcely fail to render grateful; yet, it is abundantly established by the certificates of Dorscu, re-endorsed by Vissarp himself, that in less than that term Cuark delivered to the Company more than Twenty- THREE THousanp Corps! And so, relatively, of the money. Thirty-six Thousand Dollars was all that this Company could require CLARK to receive in any one year ; yet, it is undenied, that in less than that time it remorsely thrust upon him nearly Seventy Tuousanp Doutiars! Inconvenient as it may ee a be to want money,it is also embarrassing to have it come upon one faster than it can be satisfactorily invested. Besides, the plethora of money, which must have very nearly driven the Company to apoplexy about those days, ought to have been relieved without recourse to innocent parties like Cuark, for there is no evidence whatever that he was a SrockHo.per, or that he was in any way bound to suffer for the misfor- tunes of the Company. Since the celebrated English case recorded by Hawkesworth, where the Churchwardens and Vestrymen certified that they wore a truss which cured a bad case of hernia in one of their parishioners, there has been no parallel to this of Ciark; and it will be difficult to frame a valid excuse for the Company in the face of the fact that the Company’s own counsel would have advised it, that notwithstanding the novelty of the thing, it had a legal right to compel the Stockholders to receive a dividend paid from their own money. Crark should have been spared the taking of this money, not the SrockHoLpeErs. It is painful to observe that all this diligence and complai- sance on the part of Clark, did not save him from a notice by Vipparp, 7x October, 1855, that the price of his wood must hereafter be reduced fifty cents per cord! Crark’s reply to this unreasonable requirement is admirable both for sense and Spirit; quite worthy, indeed, of the best days of that Rome, which so far from possessing but one Stryker and he stricken, held not a male citizen who was not a striker :—* He would not take $2 50 when he had a contract for $3 per cord!” Seeing that outside of Schenectady the contract was void by the Statute of Frauds, it being an oral contract for the sale of growing trees, the mnoral courage exhibited by Crarx is quite imposing. Vissparp must have thought so, for in the very next month, November 7, 1855, one of Dorscu’s certifi- cates was endorsed by Vissarp, amounting to $11,162 56, at $2 85; and by the 20th December, 1855, he was so chastened by remorse, that he endorsed another amounting to $16,057 50, at $3 per cord. There would be less to regret in this con- nection, if Cuark’s feelings had escaped as did his pocket. Let no one suppose that the measure of CrLarxk’s annoy- ances has been stated, but it will be noticed that at this point not a peg had protruded upon which a suit at law could be hung; a state of things which did not long con- tinue. Hints, inuendos, and rumors ripened into positive allegations, and at length the parties to the contract, neither knowing how, and to their mutual grief, came to stand as antagonists—the Company claiming “ that the measurements and certificates of measurements of said wood are not right, and that said Cuark has not delivered the quantity or quality of wood for which he has received certificates of measure- ment and payment, and that he now holds a certificate of measurement which should be delivered up to be destroyed or cancelled ;” and also, “ that the price paid for said wood to said Cuark is more than it should have been, and also that said Ciark owes said Company for over-payments, on QUAN- TITY, QUALITY AND PRICE, as aforesaid, and justly should refund to said Company:” and CLark maintaining the converse of each proposition. The parties agreed finally to submit the controversy to arbitration. There is too much reason to apprehend that, in the selec- tion of arbitrators, CLArK was allowed little or no voice. Perhaps, as often happens, he was overawed by a wealthy and powerful corporation. Nothing but the result of the arbitration saves the Prestpent from severe condemnation for having named as arbitrators, gentlemen whose relations to the Company were such as ought to have excluded them from such a position. Two of them were in the pay, cer- tainly, and perhaps in the service of the Company, and the THIRD Was one of its own Direcrors! It is no answer to say, the three gentlemen named as arbitrators are, beyond all controversy, the most honest and intelligent at present concerned in the management of the Road—that will be cheerfully conceded—there were not probably five such men in all Sodom; but human prudence has established the rule that no man, liable to bias from interest or association, shall be put in a position so perilous to integrity and har- rowing to kind feeling. Itis repeated, that Mr. Cornine will owe his escape from censure for having named his own men as arbitrators, solely because Messrs. Davin Hamitton, Livineston Spraker and Biituines P. Learnep, have shown by their award, that if in any quarter hopes were indulged that they would incline toward the Company they were connected with, all such hopes were vain and groundless. The remarkable character of the award will perhaps ap- pear as well from a disclosure of some of the very frivolous grounds upon which it was sought to be set aside, as from those upon which the arbitrators were solicited to make it. Besides, it will illustrate at the same time the action of both judicatories, and so shorten this narrative. It was pretended that there was not land enough in CuarK’s lot to yield the quantity of wood alleged to have been delivered to the Company. The quantity of land bought of the Messrs. Huntington was 517 acres, of which there was occupied by the Railroad track, . : ; , : ’ 13 =55, acres. Lands cut over by Morse, & a bleak place, 17 z: Land cut over 30 years ago, ; . . 40 af Land uncut at the date of the award, . . 19 #8. 1503, « Thus, the number of acres from which wood could have been cut for the Railroad was only 367 or thereabouts. From these 367 acres one-third was cut into timber, and was the best wood on the lot. Patrrick and Dorscu admit that they cut 165,000 feet of hewn and round timber from these 367 acres. Such men as E. B. Armsrrone, Joun Wesvt, Davin Uttey, Exvtzur Cuark and Josern Kwyicut, testified as to the quantity of wood upon the lot, and the highest esti- mate by them of the entire amount of it was 55 cords to the acre. Armstrone, who gave the most full and intelligent account of it, makes the quantity 40 cords to the acre, aside from the trees cut as suitable for timber, say 14,680 cords from the entire lot. The most extravagant of CLarx’s witnesses put it at 80 cords to the acre, say 29,360 cords in all. The arbitrators, one of whom, Mr. Hamitron, enjoyed the advantage of having viewed the lot and its crop in person, evidently doubted the correctness of all the witnesses, and award that Cuark had delivered to the Company 32,169 cords, besides the hewn and round timber, which it was proved was equal to 5,000 cords more. So the truth must be that the lot yielded over 100 cords to the acre! It is strange, however, that Cuarx concealed a fact so important to him- self, and that it came out by means of the arbitrators. Cuark had already received from the Company as for wood from 867 acres . : ‘ : : . $69,504 78 The arbitrators add 4 d y : . 24895485 The 165,000 cubic feet of lumber, . f : 3,300 00 Making the enormous sum of, ; . $94,580 13 Yielded by 367 acres of wild land! Of this sum the New York Centrau Raiiroap conrrisutes $91,280 13! Itis clear enough that there are processes by which wild land can be forced to produce as no cultivated land everhas. What can be those processes? Arbitration is one of them evidently, but what fertilizer must be used? The odor of these arbi- trators excludes guano from such a triumph as this. And the fertilizer, be it what it may, is it applied to the land or to the arbitrators? The Agricultural Society is desired to look into this matter, because “There remaineth yet much land to be possessed,” and the receipts of the Road are increasing. The award was held to be partial, because the Company had not received any such quantity of wood as was mentioned in the certificates of measurement, which certificates had been proven fs wf to be false, and because it was proven that such wood as had been delivered was not of the stipulated quality. On the part of the Company it was shown that it took wood from the lot as follows: Ist. Wm. Cain drew in March and April, 1855, 358 cords 2d. J. E. Comstock drew in May 1 to 8, 1855, . 975 = « 3d. J. J. Rasback drew in May 8, to Dec. 27, 546 car loads short wood, 7 cords ea. 3,822 6“ 649 do long 6t “« « 4,056 332. « 138 do do 64 “ “ 862 mes “6 4th, Ed. Tiffany drew Dec. 27, to Feb. 10,56, 500 sé Total drawn away, . : we LOS TS ik There was neither evidence nor pretence that any person or persons, except those above named, drew wood from this lot. Inasmuch as Crark had been paid by the Company $69,504 78 by the 27th December, 1855, for 23,397 cords of wood, and all the deliveries up to February 10, 1856, amount to only 10,573 cords, the question arises, what quantity of wood re- mained on the lot undrawn ? The mathematician and measurer, Mr. Perer Dorscn, had given to Crark, as of January 17, 1856, his official cer ificate that Cuarx had delivered to the Company 8,905 cords of mixed wood, for which Cruark had rendered his bill at $2 50 per cord, amounting to $9,763 12. This voucher had been put into the hands of the Paymaster about February Ist, 1856, and on finding it was not to be paid that month, CiarK withdrew it. This is the voucher demanded by the Com- pany to be “given up to be cancelled or destroyed.” Cxark, however, contended that the wood mentioned in that cer- tificate formed no part of the 23,397 cords for which he had been already paid, and so does the award. The non-payment of the voucher happened on this wise : Director Joun F. Seymour, of Utica, called upon Directors Joun L. Scnootcrart, of Albany, Joseru Frey, of Rochester, 10 and Drawn Ricumonp, of Buffalo, to go to Rome and examine Crark’s wood. They made such examination, attended by Me. Perer Dorscu, and the fruit of it was that they “agreed to telegraph Mr. Pruyn not to pay any more money to Mr. Cuark.” In consequence of this, Mr. Pruyn, acting as lo- cum tenens of Mr. Cornine, who was absent, on the 3d or 4th of February, 1856, issued an order to the Paymaster to pay no more money for wood delivered at Rome or Chitten- ango. Mr. Cornine’s absence at this juncture is to be re- gretted—it was probably the cause of this overt act in the name of the Company. It is pleasant to believe that Mr. Seymour’s officiousness caused him to be left out of the di- rection at the following election—a convincing proof that the persecution of poor CLarK received no sympathy at the hands of the appointing power in the Company. A further consequence of the examination malevolently set on foot by Mr. Seymour, furnishes an answer to the question just raised, what quantity of wood remained on the lot? Mr. H. 8. McExwarme was despatched to take an ac- count of the unmeasured wood upon the lot, and to prevent error, Mr. Perer Dorscu went with him, to point out what he had already measured. ‘There appeared to be but one lot of wood remaining there which Dorscu had measured. This was estimated by “area measurement,” to contain 1,221 cords, but turned out, after being repiled and measured, to contain only 922 %2 cords. Now, if this wood may be ad- ded to the previous deliveries, and at its “ area measurement,” 1,221 cords, there would be but 1!,795 cords received by the Company against 23,897 cords paid for! Where were the 11,600 cords? And echo answers where? The unmeasured wood found by McEuwarye upon the premises, which embraced all that ever was delivered, was measured by him in April, 1856. His measurement was an approximation merely. He swears he deducted nothing for stumps, uneven ground, bad piling, or bad wood; while the proof stands uncontradicted and unqualified that from + to 11 + should be deducted from a fair outside measurement, to ascertain the actual quantity; that when he measured the wood, he “ measured the area it occupied, or had the appear- ance of occupying ;” that his intention was “to have it re- moved to Albany and repiled and re-measured there, to get a correct measurement :’ Besides, Mr. Pruyn had direct- ed that the wood should be so removed and re-measured. A fire in the fall of 1856 defeated the removal and remea- surement intended, but 2,018 cords on the ground, after the fire, measured when moved 1,539 cords. This “ area mea- surement” Mr. McExuwarine made to contain 8,762 11° cords, which included some 3,350 cords repiled by Crark at a cost of the Jabor of 50 men from February 11, to March 28, and _from it they threw out 700 cords of culls! No wood, except 10,573 =°,6, as above, was taken from the lot until after McEiware had measured all there was upon it, say: ‘ : : : 8,762 11° cords. Add the lot not measured by him . eto ork a Add wood taken away . ? ; . 10,573 96, « Total of wood drawn and undrawn, is . 20,557 “s While, by the 27th December previous, CLark received pay- ment for 23,397 cords! Thus all the wood ever delivered, it was alleged, was less by some 2,840 cords than the quantity for which Crark had been already paid. The arbitrators, however, decided that 23,397 cords had been delivered ; and further, that Cuark had delivered 8,762 cords in addition thereto, which will pay Cuiark for 11,602 cords, which the ingenuous are requested to trace to the possession of the Company which is required to pay for it. An examination of the testimony will sustain the calculation that the 20,557 cords overstates the quantity received by the Company by at least 2,000 cords. In ordinary cases such testimony as these arbitrators had before them in regard to both quantity and quality, would have made the decision of both points a very easy matter. {2 James Stmsse testified: “I piled wood; it was not piled with any care, but was thrown off; when we came to a stump the wood was piled right over it; there were several piles together; after the piles were done you could not see where the stumps were; Mr. Parricx was back and forward while I was piling.” Joun Hoae, who chopped there in the winter of 1854 and ’55, testified that the wood cut by him was “measured by Mr. Parrick, and paid for by him. “Ichopped by the cord ; ] put in everything that would make wood ; think one-quarter of the wood was stumps, ‘* *,;’ by outside measurement a man could not tell the quantity of wood which was there.” Wm. Coomps testified: “ We found large quantities of logs in the piles all over that we could not saw; it looked to me . as if pretty much all the limbs were put in that grew on the trees of any size: we did not enquire as to folk’s contracts ; the wood was piled up close as it could be, one tier against another, so that when we came to break into a tier we would have to take all down together; one pile was so jammed up against another* * * *; the man who mea- sured the wood could not tell anything about the stumps or knolls, except where there was a single pile, and then there would be a single stick set up to keep the wood off the stump ; I don’t remember any instance where this was done, except in single piles; when the piles were opened we found stumps of All sizes up to three feet through; I should calculate that if ] was going to put the wood into a merchantable shape, I should eall six feet high four feet high ; the wood there was piled six feet high; I think it would not pile more than four feet high to make it merchantable, properly piled and suita- ble wood; I have always made this estimate ; when we were sawing we used very often to talk it over; * *™; I should de- duct one foot for piling, and one foot for rotten wood and limbs ; this was on all the piles.” Jacos Suanporr, the engineer who drew wood in May and June, 1855, testified: “ The piles of wood on the ground were piled so close together that you could not get in between them to measure them; the tops of the piles appeared to be level ov nearly so; when the piles were opened we found stumps, some brush heaps, knolls, some roots turned over, where the -* 13 wind had blown over hemlock trees, some logs; we could not see one of them without breaking into the piles ; in some places the stumps were very thick; | think the stumps would aver- age from nine to ten feet apart, as near as | can recollect ; they were principally hemlock stumps of different sizes and roots running from them, and the wood was principally piled on them; we could not see any of the stumps without break- ing into the piles unless it was on the first tier ; the wood was piled on the top of the stumps.” Joun J. Raspack, the conductor of the wood train which drew all the wood drawn {rom May 8 to December 27, 1855, testified: “The long (7. e. unsawed) wood I drew away was piled on stumps, and brush and knolls, roots of trees, and over logs, old logs ; the piles were in tiers fr om ten to fourteen feet deep ; ; Ido not recollect but one that was fourteen; they were piled on these stumps, and brush, and logs and knolls, and were piled close to each other so that a man could not get in between them to examine ; I should not think it possible for an external measurement of those piles to tell how much was in them * * * ; Mr. Parrick had charge of banking the wood; he was there and attending to tt. James GReEN, the engineer who succeeded Suanporr in Jan- uary, 1855, and Epwin Tirrrany, the engineer who drew wood under Raspack, and also after he quit, and in January and February, 1856, gives substantially the same descrip- tion of the wood and its piling. Joseru Kyicur, a surveyor, counted and measured the stumps. He estimated that the actua! obstructions within the area measured as wood, without reference to the bad piling, umounted to 25 per cent. It was alleged to be proven that all this false piling, and consequent false measurement, was under the supervision of Wituram Parrick. Ezra Foster, Jr., Assistant Superintendent of the Eastern Division of N. Y. Central R. R. since the consouipaTion, tes- tifies as to this wood: “It was difficult to make steam with it; it was principally hemlock and spruce, much of it green ; 14 there was considerable many logs in it ; they would average from a foot to eighteen inches in diameter * * ; consider- ble of the wood appeared to be dozy, as if wind-fallen ; 7 was dozy, wet, soggy wood; * * the engineers of locomotives complained of not being able to make time with it; * * L[com- plained to Mr. Visparn, and then for a while we would get a different kind of wood; they would send down short wood to us, and then they would send the same wood again; * * * I bought from time to time wood from the canal to mix in with it; LI cannot tell how much, quite a number of loads, perhaps ie all 500 or 600 cords from the canal and city; * * I got a different kind of wood sawed; I think it was ash and elm, there may have been some hemlock among it; then in a short time the Cuarx wood would come again, and we would mix the short wood with it.” Joun L.Scuooucrart,a Director, testified: “In the latter part of January or first of February, 1856, 1 and Mr. Ricumonp and Mr. Fietp-were called upon by Mr. Srymour, to go to Rome and examine a lot of wood delivered by Mr. Crark to the Roap, on the Rome and Watertown Railroad ; * Mr. Ricumonp, Mr. Fieip, Mr. Seymour and myself went to this lot to examine the wood; Mr. Dorscu was also with us, and a Mr. Jounson; there was a large quantity of wood piled on the ground; it was on both sides of the railroad; it was piled so thata person could not pass in betweenthe piles ; | know very little about wood, or its piling, or its quality; there was a great deal of decayed wood, and small woodand limbs, and from the knowledge I have of piling, I think it was badly piled ; in some places tt was piled on large logs; large logs constitu- ted a part of the piles ; they had been cut and not split at all ; the wood was not assorted ; the limbs and rotten wood were not taken out; some of this was wood that bore on the ends the measurer’s marks ; Mr. Dorscu was with us in the examina- tion of the wood; we had conversation about the mode of mea- suring the wood, and the condition of the wood; we went on to the ground and examined the wood, and were there about two hours; on our return to the hotel we consulted with Messrs. Ricumonp, Frey and Srymour; we agreed to telegraph to Mr. Pruyn not to pay any more money fo Mr. Cirark, and I did so; * * * In the fall of 1856, after a fire had destroyed a portion of the wood on the lot, | again visited the lot with Mr. Fre.p, a Director of the Road, Cot. Hamitron, Mr. Sry- mour and Joun T. Crark; the wood was piled over stumps ; wy 15 the wood was of aninferior quality, not merchantable ; Cou. Ham- iLTON or Joun T. Crark measured the length of the wood ; tt was not four feet in length ; I saw it measur ed ; there were logs in among the wood, over a large piece of land, not split; when I was on the lot in the winter of 1853, the bottom of the same piles was of old wood; a layer or two of old wood and the top of new wood; I cannot say how much, but enough to attract my attention; * * * the wood on the Railroad was piled so close that we could not see in between the piles we could not examine the inner piles ; all we could see was the end of the piles; I cannot tell the proportion of rotten wood ; I saw stick after stick; the ends were decayed; I did not want Mr. Ricumonn’s opinion after [ saw the wood ; the botlom of the piles had the appearance of having laid there a long while, and having new wood piled upon it time and time again; the other wood. appeared fresh; the second time I was present they were assorting the wood, the piles were opened.” The case is aided not a little by the circumstance, that the same witnesses saw the wood on the lot while the piles were so “jammed together” that nothing was to be seen but the fair and fraudulent outside; and also, after the piles had been opened and the inside “ exposed.” Davw Urttery, a Director of the Rome and Watertown Railroad, testified: “I went on the lot with Mr. Armsrrone, Cor. Hamitron, Mr. Scuoorcrarr and Joun T. Criarx; this was a year ago last fall; I saw one large pile; they were moving or assorting it on the Railroad; this was just after the fire ; L measured some of the piles, the height and length of wood; there were a good many piles close together, making one pile; the wood was short about six inches in length and height; there was considerable many logs on the bottom of the piles, and some small logs mixed in; J would consider the wood worth two-thirds of what we call good railroad wood.” Eizur Crark, of Salina, testified: “1 have been in the timber business for the last twenty-five or thirty years; * * at the request of Mr. Srymour, I have gone to the Crark lot and examined it for the purpose of seeing the wood that was cut there, its quality and situation; one time, the first time I went there, there was a large quantity of wood on the 16 ground; this was in the month of June, 1856; * * * where they opened into the wood, there was one place in particular that I noticed; that was piled over a rough piece of ground filled full of logs, which had never been split, two feet in diameter, thrown into the pile promiscuously and the wood piled over it; the wood was on the westerly side of the creek ; J measured the length of the wood and the height; I saw the marks on the ends of the piles where it was marked with black paint; this one was marked 7 feet high ; it was one of the piles next to the Railroad ; I measured the height of itin a good many places; it did not measure from the ground to the top of the piles over 6 feet and 6 inches, so far as you could discover, the other piles or tiers were smooth on the top so that you could walk over it, all piled close together ; so far as the ends of the other piles were concerned, I cowld not see any particular difference between their height and the height of the pile I measured ; it isa common custom with us to allow one inch for every foot in height of wood to get full height; in thes case the marks were 7 feet and the pile only 64 feet ; [ measured the length of 100 sticks in that pile ; L made the length 3 feet 8 inches ; I measured from the scarf to the point to ascertain the length; 3 feet and 8 inches was the average; some of the sticks were not more than 3 feet, others were 4 feet; the pile that was marked 7 feet high I made no deduction of one inch per foot to get the 64; 64 was ats actual height; the wood was not piled as I have been accustomed to see it; it was piled over stumps; you could see some of the stumps on the outer piles; on both sides of this great body of wood you could only sce two outside tiers of wood: so far as regards the quantity of wood, I did form an estuemate in my mind of what should be deducted from it to make its quantity; I thought I could take any 100 cords of wand put it intoTs cords; I thought all the wood measured one-quarter too much ; 1 mean the big pile and the piles near the branch, I would except what had been re-piled: there Was some wood there that had been re-piled; the wood that had not been re-piled, I thought was measured one-quarter too much; so far as the wood 7s concerned that lays near the branch, some portions of 7t appear to have lain there so close together that it was mildewed or water-soaked; the other big pile when I measured I did not see but it was dry enough; I could not see into that ; that portion of the wood that was mildewed was not worth more than two-thirds as much as if it were dry; I would deduct 33} per cent. for mildewed ; I %) 17 examined the lot with a view to see how many cords it would yield to the acre; from the best judgment I could form, judg- eng From the stumps and the timber standing, L think it could nol vary much from fifty cords to the acre.” Joun T. Ciark, late Stare Encinerr, testified as to the bad piling and admixture of stumps, roots, logs, and rotten and dozy, with such wood as was sound ; that it would not aver- age more than 34 feet in length: that the wood was mea- sured in the presence of Cot. Hamitron, and said : “From my investigation and examination of the wood, 7 came to the conclusion that forty per cent. deduction should be made from the wood; If the stumps were excluded from observation, and there were no stumps adjacent, no man could have told how much was there ; the stumps being ad- jacent, the person might foresee they were under.” Dean Ricumonp, a Director, testified that in the month of January or February, 1856, he went to Rome with Joun L. Scuoo.crart, Josera Fretp and Mr. Seymour, and Mr. Dorscu, (meaning thereby Mr. Perer Dorscn,) to examine a quantity of wood on what is called the Ciark lot. Q. Was any question asked Mr. Dorsca, when on the lot and looking at the wood, how he could tell anything about the quantity or quality of wood piled in the way that was? If so, what was his reply; Give the language if you can, if you cannot, give the substance. A. We walked alongside the wood; I believe I was along- side of Mr. Dorscu, most of the way; we came up to where there was some seven or eight tiers, and I asked Mr. Dorsca, said I, “Mr. Dorsca will you please tell us how any man can measure that wood and give the proper amount?” The wood was piled so close together that no man could get between it; he said it could not be done; that he was sent here to mea- sure the wood; that anybody knows it cannot be done; that he did the best he could with it, but that it could not be done pro- perly ; Lasked him if this wood was measured for us in this manne”; he said if was; once or twice ufterwards the same question was asked; I looked at the stumps and sa'd I did not see how wood could possibly be measured in such ground, among such stumps, in such tiers ; he remarked it can’t be done! 3 18 The award was charged to be partial for the reason that it allowed $3 per cord for all the wood, while the submission gave the arbitrators power to make an equitable deduction. The contract being void by the Statute of Frauds, and sub- ject at all times, so far as it remained executory, to revoca- tion or modification by either party, it was held to have been modified by the notice Visparp gave to Ciark, in Octo- ber, 1855. Neither the wood delivered before nor after the notice was of the sort required by the contract—it was not “suitable for burning in locomotive engines ”——-nor was it “ properly cut and split,” nor “sound,” nor “free from small limbs.” Of the wood examined by Joun T. CLarxk and others, and by the Arsirraror Hamiuton, it took 50 men 39 days to split, assort and re-pile 3,353 =5% cords, at a cost of more than 50 cents a cord; and 500 to 700 cords had to be thrown out as unsuitable. CLarKx himself had acted under the notice. Henry Stevens testified: “That he was Paymaster of New York Central Railroad in January and February, 1856 ; * * * this isthe $9,000 voucher; this certificate of mea- surement was presented to me ; the outside paper or voucher ; I made the certificate of measurement; in the certificate of measurement there are 3,905 75, cords, and the price stated on the certificate is 20 shillings ; i¢ was handed to me by Mr. Dorscu, in order to have the voucher made out for the purpose of payment ; it was then $2 50, as it is now; Mr. Crark came in and asked me when we were going to pay; I said, probably not this month; he then asked me how many cords there were; I hunted and found the voucher and told him; he then says to me let me take that voucher if you are not going to pay this month; I told him I had no objection, and handed him the voucher.” That notice had been given by Visparp to Crark that after October, 1855, no more than $2 50 per cord would be paid to him for wood, was not denied ; and it seemed clear that in February, 1856, poor CLarx had made up his mind to sub- mit to the exaction, because he rendered a bill for wood at that price, and manifestly expected to be paid that price. It 19 was hard for him to take such a price after the habit had become fixed of receiving a higher one, and so the arbitra- tors must have thought, when, by their award, they relieve and protect him not only against the rapacity of the Com- PANY, but also against his own weakness. Upon grounds which may be gathered from the foregoing statement, the Counsgx for the Company contended orally be- fore the arbitrators and also placed in their hands a written brief, claiming that the contract being made for trees grow- ing upon land was liable to modification, and was modified by Mr. Vissarp from three dollars to two dollars and fifty cents per cord. That Mr. Crark, under his agreement, had no right to deliver more than 12,000 cords per year; that the contract was for suitable wood, properly cut and split; but that the wood was not suitable for railroad purposes, according to contract; that the wood was so coarse that it took fifty men from February 11 to March 28, to split and re-pile 3,353 cords of it, and 700 cords of culls were thrown out, and that one-half of all the remaining wood required re-splitting, and that from one-sixth to one-fourth should have been culled out; that the wood was so loosely and badly piled in the interior of the piles, and also piled over hidden logs, brush, stumps, roots and knolls, and in so many and close rows of piles, while the exterior of the piles appeared well, that the whole was a fraud upon the Company, and upon its agent, unless he was a party; and in either event the certifi- cates of measurement were no criterion of the quantity of wood. That the wood was not four feet in length nor six feet high. That the fact that the measurement of wood over stumps, logs, roots and knolls, could not be relied upon, was not only apparent from the circumstances, but also from the fact that the land could not yield the quantity alleged to have been measured. ‘That the number of car loads of wood drawn from this lot was most manifestly a better measurement of the wood delivered by CrarK than any measurement that could have been made on the ground, 20 and relieved the case from all guess-work. That they have the evidence of the men who drew the wood, the number of car loads and the quantity per car. That fortunately most of it was drawn by Rassack, who commenced drawing in May, 1855, and continued till January, 1856, and kept a memorandum of loads and days. That from the time this drawing commenced until it was stopped in February, 1856, they had the quantity drawn by each and every man, and that all that was afterward drawn was by Joun Hoae, who kept account of his cars, and the wood drawn in them was re-measured at Albany, except 406 cords measured at Oris- kany. That there had been drawn before Hoac commenced 8,764 cords, and Hoace drew 5,720 cords; and that it was impossible that the quantity of wood claimed by Cuark could have been drawn away. That every experienced and disinterested man who had examined the piles estimated that there should be a deduction of one-fourth from the ap- parent quantity to get at the real quantity, taking into account the quality. That Joan T. CLarx estimated that the deduction should be Forry per cent ; E. B. Armstrrone, One- Fourtu ; Joun Hoac, One-Fourtu ; Davin Uriey, One-Tuirp ; Exizur Ciark, Onse-Fourta; Witiram Coomses, One-Tuirp. Upon arbitrators whose indifference to the parties litigant was not obnoxious to suspicion because of their relations to ‘ ther, facts and inferences so specious might have had effect. But it was undeniable that, to a man, they were the appointees of one of the parties, that in honor or emolument, or both, all of them were paid by the party. One of them indeed, to whom further honor would be superfluous, and therefore received from his connection with the Company money only, was liable to the grave disability of having in- vestigated and pre-judged the case. Scnootcrart, swearing to the bad quality and short measure of the wood, says: “Cox. Hamitton or Joun T. Crark measured the wood; it was not four feet in length; I saw tt measured ;” and Joun T. Cuark says: Cou. Haminron was present; we were on the lot an hour 21 or an hour and a half, we may have been there two hours ;” All who are aware of the keenness of Cot, Hamivron’s faculties need not to be told that, “in an hour or an hour and a half,” he would see a great deal. It is due to Cou, Hamitton, to state that on that occasion he was not under oath—when he made the award he was. It was notorious too, that no man holding any post of honor or profit in that Company could do anything disagreeable to the appointing power, except at the forfeiture of his office. The Cabinet of Gren. Jackson, on the day it was most especially “a unit,” is but an emblem of discord contrasted with the unrry OF THE DIRECTION OF THIS Company—it casts but a solitary shadow in the sun. This fact makes necessary a conclusion equally irresistible and creditable. The arbitrators must have been aware what would be agreeable to the appointing power, which relieves that high quarter from the slightest suspicion of having in any way countenanced the modification of the contract by Vissarp; the impeachment of the correctness of the certifi- cates of Mr Perer Dorsca ; the defamation of CLiarxk’s wood ; the efforts of Director Seymour, or any of the persecutions which fairly entitle Cuark to a place in the next edition of the Book of Martyrs. Indeed, the Courr was urged to con- firm the award upon the very ground that its acceptability in that quarter had been demonstrated by the re-appointment or continuance of these arbitrators in the same offices in the Company, and everybody knows the appointing power itself had received from proxies the same meed of approval. The case might have been made stronger by apprising the Court that vengeance had overtaken the Director, who, misled by a sense of duty, had prompted investigation; that an impres- sion had been rife among the employees, that whosoever ma- ligned the “CriarK woop” did so at the peril of his daily bread; and whether that impression was well founded or not, it was potent enough to annihilate all memory of the wood in some, and to drive others to such supplications to be spared subpenas as were painful to hear and impossible 22 to disregard. It is to be lamented that the SrockHoLpErs were not recognized as parties by either of the Tribunals which have tried this case, and as the virtues of Consoripa- TION are quite well known to them, the expediency of consol- idating the interests of the Srocxuo.pers and of their OrFicerRs, which now appear to be several, is suggested. ; The Company however took nothing by its motion. The arbitrators set their faces like flint against all attempts to modify or to enforce the contract—to impeach the truth of the certificates of measurement, to disparage the fertility of Clark’s lot, or the quality of its wood, by testimony. Unlike the Company, which seems to have trusted to the number and respectability of its witnesses to establish its case, CLark surprises us by the completeness of his trust in Providence, which is never without a Superintendent. No subpeenas of his summoned Railroad Directors, Bank Presi- dents, or ex-State Officers, but to the Company’s array of witnesses of position, he opposed a remarkable disparity in point of number, and of much greater disparity in point of character. So unequal a contest has not been observed since another David smote another Goliah, and in this In- stance, as in that, “the battle was not to the strong,” nor the spoil either. Let all Clarks take courage and all Railroad Companies be warned by this overruling of a superintending power. The entire defence and claims of Ciark rested mainly up- on the testimony of two witnesses—Witi1Am Parrick and Mr. Perer Dorscu—a fearful odds! Patrick swore as became “the hour and the man.” He said: “I was to get my pay by Railroad measurement; | was to get so much a cord for what I hauled out and banked by ratlroad measurement; * * Iwas on the lot daily ez- cept Sunday ; I saw the wood daily from the time it was cut until it was measured; J assisted Mr. Dorscu in measuring the wood every time with the exception of once, when I was sick, and then I sent a man to help him.” a, 23 Parrick’s pay being thus contingent upon “ railroad mea- surement,’ which, done into English, means the measurement of Mr. Perer Dorscu, it was held that Parricx had a direct pecuniary interest in maintaining the accuracy of the certi- ficates of that worthy man; for if the Company could be made to pay for roots, stumps, logs and knolls, as for wood sold and delivered by Ciark at $3 per cord, he Parrick, would be entitled to “so much” for each and every such cord. Having assisted at the measuring, he affirmed its en- tire correctness, and produced memoranda of the details handed or furnished to him by Dorscu—his connection with the piling is sworn to by Simser and Hoag, and is admitted by himself. The erection of sticks to keep the wood from the stumps in the cases of single piles, where the stumps could not be concealed, and in those cases only, is conclusive. Patrick “made an effort” to magnify the quantity of wood banked, which would have satisfied Miss Tox herself, but his data were held to be incredibley because they showed a product of 46,000 cords of wood, which was altogether farther beyond the testimony than the arbitrators went. Besides, McEtwainse testified that Parricx told him that the 8,762 cords, measured in April, 1856, by Mcliwate, was more wood than Dorscu had previously measured on the lot. McExwaine had stated the same fact in his report to Mr. ~Pruvn. McExtwaine swore also, that he asked Patrick the amount of Dorscn’s measurements, and that he replied he could not give it. McE.Lwaine made a memorandum of the conversation at the time. It will be recollected that on this occasion McEtwatne was engaged in trying to discover the actual quantity of wood delivered and measured upon this lot, and Parricx knew the object of his enquiries—therefore, if Parrick had possessed the memorandum book produced upon the hearing, he would have exhibited it. The entries in the book were suspiciously fresh also. Parrick swore that Dorscn marked the piles short to allow for stumps, but on cross-examination he could only remember four instances— 24° twice in his own case, and twice inthe case of others, and in regard to a small body of wood. The men who sawed the wood on the lot swore they measured the piles, and found that the marks on the wood represented its entire length. Parrick needs, and is entitled to the benefit of a moral or religious excellence developed by his testimony, incidentally, he was never on the lot on Sunday! The witness who seems to have been most esteemed by the arbitrators, and whose evidence would have controlled the award, if such authority had been allowed any con- control whatever, is Mr. Perer Dorscn, of Schenectady. Esprit du corps may have had something to do with this—he had been “ Perer Dorscu or Ours,” ever since the Consouipa- Tion—quite le fils du Regiment. This veteran testified : “] reside at Scuenectapy ; I was in the employ of the Cen- TRAL RartRoaD Company, and I was from the time of the Consot- IDATION; this was five years ago; my first business was I had charge of a portion of. track as trackmaster; I continued trackmaster upwards of one year, it may have been more, until January, 1855; after that I was employed in measuring wood from Albany and Troy to Syracuse; I continued as such measurer until the first of February, 1856; during that time I was engaged in measuring wood for the Company ; my position at that time ceased by my giving the Roav notice that I should quit; | gave that notice to Mr. Vissarp; I re- sided at Scuenecrapy during all this time, and Mr. Vissarp did also; I often saw Mr. Vissarp in my official duties while measuring wood; I am acquainted with the Cuarx lot; I have been on part of it; | measured wood on it.” The wit- ness is shown certificates of measurements, and says: “ They are all my certificates ; the signatures are mine; * * Mr, Wm. Parrick generally assisted me; | measured at the seve- ral times the several amounts stated in those certificates ; at those times the amount of wood was actually there ; number three says so many cords of hard wood, it should be mixed.” The witness is shown a paper, and says that it is his hand- writing, it is dated January 17, 1856; the amount of wood stated in it, 3,905 ,3%. cords. “ The price of $2 50 was not so when I made out that certificate; when I made it, it was $3, it is now $2 50; the amount of wood stated in that certifi- 25 cate was there when I measured it; * * * J measured short in length all the wood that was sawed upon the lot; I mean by that, ifa person took a tape line and measured the length of those piles he would find them longer than the marks on the ends of the piles indicated, so much shorter that it would be observed; I always measured a block pile two feet short, a foot at each end, and over and beyond that f made a difference in this case; I have looked for some of the original memoranda of my measurements, and they are probably destroyed ; I cannot find them ; they were on loose pieces of paper; Mr. Crark was generally with me when I measured the wood ; sometimes I had aman to assist me, and sometimes a man by the naine of Suutts, of Oneida, sometimes only Mr. Cuarx and Mr. Parricx ; * * * JI went upon this CLarx lot with Joun L. Scaoot- crart, of Albany, Josera Fieup of Roches'er, and Dean Rica- monpv Of Buffalo, and Joan F. Seymoor, all then Directors of the New York Central, to look at the wood on this lot; I was then asked in the presence of these gentlemen how I| could tell anything about the quantity and quality of that wood piled as it was, or how I could measure it; L did not say in reply that [could not tell, or that it was mere guess work, or anything of that sort; I did not say substantially that to Mr. Scuootcrart, nor to Mr. Ricumonp, nor to Mr. Fiecp ; * * * TIT did not say that I could not measure it; I said that it was difficult, that I had to go on the tops of the piles ; that there might be stumps I could not see.” A more simple and intelligible story could not well be told. Unequivocal in statement, firm in denial, and cour- teous in both, one might expect it would make an end of strife. The moral effect of so plain a tale upon the arbitra- tors is visible enough in their award; and the adverse party could raise but a single objection to it, to wit: that it was false—which, it is as apparent, found small favor with the arbitrators. There was, indeed, this remarkable feature, which might have worked mischief between parties who knew less of each other than did these arbitrators and this witness, that nearly every material statement made by Dorscu was contradicted by witnesses who stood unim- peached, and were allowed to depart so. An example or two will illustrate the indignity to which Dorscu was sub- 4 26 jected, and at the same time reconcile many to the some- what vindictive character of the award. Dorscu swore that he deducted for stumps by measuring the piles so short that any one re-measuring them with ‘a tape line” would observe it. To prevent error, to do which Dorscu seems to have a natural proclivity, he specified the “ sawed wood” as having been foreshortened in that manner, and of this wood there was some 4,000 cords. Yet, at the moment these truthful words left the lips of Dorscn, CLarK’s own counsel had already proved by Lawrence, who had the contract for sawing, that he measured some of the marked piles, and found the marks to be correct both as to length and height; and stranger still, he measured them with the very implement named by Dorscu,—* a tape line!” The foreman of Lawrence, who superintended nearly all the sawing, did the same thing, and swears the piles were not marked short. Dorscu swore positively that the price of the wood in the certificate of January 17, 1856, was $3 when he made it. Henry Srevens, Paymaster of the Company, swears of the same certificate: “lt was handed to me by Mr. Dorscnu, in or- der to have the voucher made out for the purpose of payment ; it was then $2 50 as it is now.” Contrast what Dorscu swears he did not say to Dean Rica- mMoNnD, With what Dean Ricumonp swears he did say over and over again. ‘The testimony of both is quoted above. In this connection it may not be amiss to enquire, what prompted theaction of the Directors which followed the very interview referred to by these discordant witnesses? If Mr. Dorsca had affirmed the correctness of his measurements, why did these gentlemen agree “to telegraph Mr. Prouyn to pay no more money to Mr. Crark,” if they believed Dorscu? and if the case had not been urgent, why telegraph at all; for it is inevidence that Scuootcrarr returned at once eastward, and if he did not go through to Albany that night, the train did, and might have conveyed a written notice to Pruyy. Evidently raiload speed was not equal to the emergency created by their examination of the wood and of Mr. Perer Dorscn. OS 27 Dorscn, it will be remembered, was as old as Consott- pation—in fact Consotipation and he were twins. He had “grown with its growth and strengthened with its strength.” His character had been formed by it—no mag- got ever partook more of the nature of the cheese which : n- gendered it, than he did of that which made him trackmaster. Limited as may have been his sphere in that capacity, it was not without advantage to him, in that it saved his morals from exposure to taint from the management of any other road; and while it subjected him to the constant observation of his teachers and superiors, it also revealed to them quali- ties which seldom appear upon the surface. What wonder, then, that when Providence had so ordered affairs that im- portant interests required that the road should have a wood agent of rare morals and mathematics, the Superintending Providence indicated Dorscu as the man for the place. It may aid feeble imaginations to conceive something of the difficulties of the position to know that a man like Cot. Hamiutoy, one of the arbitrators in this cause, was thought to be only a fit successor to Dorscu, and was made wood agent. The date of his appointment does not appear in the testimony, nor is it material, it being enough for all neces- sary purposes to say, that it probably does not vary much from the time of the convention whereat Cor. Hamitron’s nomination to Congress was waived in favor of Mr. Cornine ; the precise date of which may be learned on application to the nominee. Neither respect for Dorscu’s character, for his training, nor for the office he had held, was sufficient to restrain the opposite party from putting in proof before the arbitrators, one of whom wore Dorscn’s mantle, that Dorscu had measured wood “by faith and not by sight,” on pre- vious occasions, for CLuarK and others, and had granted his official certificate of the feat. This fact must have been al- ready known to the arbitrators as officers of the Company, and proof of it might have been spared without at all abridging their personal knowledge of it. McEKxuwarne’s Report could not have been new to them. 28 On the 5th September, 1855, Dorscu gave a certificate of measurement and inspection, which certified that Henry Patrick had delivered to the Company, at Oneida, 1,061 8), cords of mixed wood, at $3 50 per cord, upon which certifi- cate, after being endorsed by Vissarp, Patrick received from the Company in the presence of Ciarx, $3,715 15. At that time there had been in fact but 570 cords measured. On the 23d November, 1855, Dorscu gave to the same Patrick, for the same wood, another certificate in which it does duty as 1,214 cords of beech and maple, at $3 50 per cord, upon which, duly endorsed by Vissarp, Parrick obtained from the Company the additional sum of $4,294—Curark being, as be- fore, the subscribing witness to the payment. At this time no more wood had been measured, nor was any more tneasured until April of the next year, when there proved to be but 840 cords. This wood had been purchased by Crark and Parrickx from a Mr. Amstep, who swore there was about 1,400 cords of it, and that he sold it to them at $2 38 per cord, making the difference in quantity 865 cords, and in value of $4,491. The quantity was actually 30 cords less than Amstep stated, and AFTER INVESTIGATION, there was refunded on these fraudulent certificates, as follows: On 1,384 cords 9s. per cord overcharged, . . $1,557 28 For 891 cords never delivered, . 5 ; 108, 118650 Total, ; : F ‘ . $4,675 78 On the 20th December, 1855, Dorscu certified, or perhaps prophesied, that H. 8S. Boeve had delivered to the Company, at Canastota, 2,531 86 cords of hard wood, at $3 50 per cord, upon which, endorsed by Visparp, the Company paid $8,824 48, January 8, 1856. McE.wainE says, in April, 1856: “The facts are that at the date of such certificate and voucher, no wood whatever had been delivered by or in behalf of H. S. Bogus, at Canas- tota, nor was any such man at that time known at that place. 29 About the Ist January, 1856,a man by that name came from Cohoes to Canastota, and commenced cutting and delivering wood from a lot of woodland purchased last fall by Georen H. Ciark from a man by the name of Huntiey. The result was, that in May, 1856, and arrer tnvesTicATIon, there was refunded : On 2,531 58 cords for overcharge, $1 per cord, $2,531 25 ei: BLe « never delivered, . : jm OU od 3.621 35 The arbitrators very properly seem not to have encour- aged enquiry into matters not named in the submission, and Ciarx’s Counsel was evidently of the same way of thinking. So much as they could not keep out of the testimony does not appear to have gotten in anywhere else, and the amiable principle “let by-gones be by-gones,” is conspicuous in the award. Otherwise the catalogue of frauds in the case might possibly be longer, and the exact amount of the pro- fits of the “Crarxk Woop” be shown. Restitution having been made for the frauds at Canastota and Oneida, of what possible use could further information be to the Company? And why should the arbitrators have allowed Morss to tell what Cuark paid for the lot—suppose it to have been thie $25 per acre hinted at in the papers, was it not enough for the Company to know that by no process could it be shown that the lot yielded in his hands more than $275 per acre ? The submission bears date September 4, 1857, and is signed by Georce H. Crark and Erastus Corning, Prest. &e. The award bears date April 19, 1858, and is signed by all the arbitrators—an evidence of such harmony of opinion as makes each arbitrator appear so like his fellow, that it is not easy to say which is the greater of the three. “ We award,” say they, “that the measurements and certi- ficates of measurement of the wood sold and delivered by said Criark to said Company, on or near the line of the Rome and 30 Watertown Railroad, are correct, except as hereinafter stat- ed; that said Clark has delivered the quantity of wood at or Anbar said Rome and Watertown Railroad near Rome, and of the quality for which he has received pay, except as herein- after stated; and that the price which he has been paid therefor was right, except as hereinafter stated. “We award, that from the whole amount of wood which said Cuark has so delivered and for which he has been paid and for which said Company hold said Crarx’s receipts, amounting to twenty-three thousand three hundred and ninety-seven cords, there should have been deducted for de- ficiency therein, occasioned by bad piling, stumps, cradle knolls, hollow logs and defective wood, and all other deficien- cies, ten per cent. of that amount, being two thousand three hundred and thirtv-nine cords and seven-tenths of a cord, which last mentioned amount at three dollars per cord, will amount to seven thousand and nineteen dollars and ten cents; and this last named sum with interest thereon from the 19th day of April, 1855, (that being the day we fix on to average said deficiency,) will amount to eight thousand four hundred and ninety- three dollars and eleven cents, and this amount last named is to be deducted from the amount due to said Clark for other wood delivered by him for which he has not yet been paid, as hereinafter stated. “ We find that the Company has in no instance paid said Crark a higher price than it was legally and justly bound to pay for said wood sold and delivered, except as above stated.” It would be gratifying to know how these arbitrators ar- rived at Ten per Cenr., in view of the evidence before them, as a proper deduction on this portion of the wood. If Dorscn’s “measurements and certificates of measurement” were true at all, they were so in whole, not in part. The deficiency to be atoned for by this deduction, Dorscu Swears positively did not exist—he had supplied it. If Dorscu’s certificates were not believed, there was nothing left but such evidence as the Company furnished of the false character of Dorscu’s certificates both as to quality and quantity. No witness of theirs swore to any less deduction than twenty-five per cent. on the score of quality. Indeed the D 31 one who made the most careful calculation put it at rorry PER CENT. for both. If Dorscu were impeached, it is an out- rage upon the Company to award 10 per cent., which nobody swore to, instead of 25.334 or 40 per cent. deduction, which several witnesses did swear to; if Dorscu were not im- peached the outrage is upon Crarx, because Dorscu swore plump 100 and not 90 per cent. If Dorscu were not im- peached, Jonn L. Scuooutcrarr, Dean Ricumonp, Joun T. Cuark, Davin Uruey and others were. Besides, no deduction whatever can be justified, except upon the ground that Dosrcn’s certificates were not correct, and the award de- clares the 10 per cent. deduction “to be for bad _ piling, stumps, cradle knolls, hollows, logs and defective wood.” There were none of these substitutes for wood in the testi- mony of Dorscu or Patrick, but that of the Company’s wit- nesses was ful] of them. The Arsirrarors seem to have taken their quantity and price, without abatement, from Dorscu, while they get the bad piling, roots, stumps, &c., in quantity exactly opposed to the testimony, from the wit- nesses on the other side, without perceiving that by recog- nizing the roots, stumps, bad piling, &c., at all, they made Dorscu’s quantity and quality impossible. There is two-edged injustice in requiring Cuiark to deduct and the Company to pay upon an obviously wrong quantity. Perhaps they did not weigh the evidence at all—they may have measured it with Mr. Perer Dorscu’s own rod, and after Mr. Dorscu’s method. An “area measurement” of Mr. Dorscn’s testimony might show the greater number of cords of truth, seeing it was entirely without logs, stumps, roots, knolls and what not, while the testimony of the oppo- site party abounds in them. At all events Truru 10 per CENT. OFF, is a new quotation in the market, and it might have saved dispute in the future, if the award had gone a little further and decreed at what rate of discount Trurs be- comes F'aLseHoop. 32 “ We find and award,” say the arbitrators, “that over and above the aforesaid amount of wood which said Ciark had delivered and been paid for, (viz., the aforesaid amount of 23,397 cords,) the said Cuark has also delivered to said Com- PANY, at their request, eight thousand seven hundred and sixty-two cords and one hundred and ten feet of wood, in- cluding the amount mentioned in the certificate held by him; that said 8,752 119 cords of wood were delivered by him at the place aforesaid, on or before April 19, 1856, and that for the same the said Company were and are bound to pay said Ciark at the price of three dollars per cord ; and that said Cuiark is entitled to recover for that last mentioned amount of wood at that price against said Company, making the sum of twenty-six thousand two hundred and eighty- eight dollars and fifty-seven cents, with interest thereon from April 19, 1856, which will amount to twenty-nine thousand nine hundred and sixty-eight dollars and ninety-six cents at the date of this award.” It is then decreed, that from this sum shall be deducted the aforesaid $8,493 11 for deficiencies, and proceeds : “ And we do therefore award, that the New York Centra RattRoap Company pay to said Crark the sum which he is entitled as aforesaid to recover, being the sum of twenty-one thousand four hundred and seventy-five dollars and eighty-five cents, with interest fee eon from the day of the date of this Cian FH ait * “ And we therefore Ae that, after the making of such payment by said Company to said Clark, the said ‘Clark de- liver up to said Company the aforesaid certificate or certifi- cates now held by him. “In witness whereof we have hereto set our hands and seals, this nineteenth day of April, 1858, (Signed) “D, Hamitron. [1 s.] “ L. SPRAKER. [ L. s. | “ B. P. LEaRneEp. [1 8. | «Signed, sealed and published in presence of M. H. Sr. Jonn.” < a.) 33 The arbitrators are indebted for these 8,762 11° cords whereon to award Clark $3 per cord, to an “area measure- ment” by McEtwains, which measurement McEuwatne swears was merely an outside measurement, and allowed no- thing for bad piling, roots, stumps, logs, &c. Mr. Pruyn having directed that the wood should be removed and mea- sured at Albany, McEnwarns expected to arrive at the true quantity after its removal there. There had been, by the labor of fifty men for thirty-nine days, split and re-piled 3,858 58, cords of this wood, of which McEuwaine testified: “that part of this wood that was re- piled was in a shape to get a correct measurement, as far as it could be on such ground ; but in regard to the whole, he swears: “If it was not to be re-measured, I would not have been satisfied with the measurement; 2,018 cords on the ground, after the fire, measured when moved, 1,589 cords.” A quantity, estimated by him on the lot as 1,221 cords, when removed and re-piled, measured only 922 cords. At all events, upon the same authority which gave the arbitrators the arbitrary quantity of 8,762 11° cords, they knew also that that was not the correct quantity. McEtwaine seems to have been regarded as a credible witness to swear money into Ciarx’s pocket, but for no other purpose; not a syllable calculated to save the Company from buying roots, stumps, knolls and hollows at $3 per cord, ap- pears to have reached even the ears of the arbitrators. The award presents the very remarkable inversion, that from the fabulous quantity of 23,397 cords, upon which the honest man who measured it swears he made deduction for roots, stumps, logs, &c., it deducts ten per cent. for that very con- sideration; while from the 8,762 cords which the unim- peached and unimpeachable man who measured it, swears was the apparent and not the real quantity, no deduction whatever is made; and this comprises the very wood in- spected and condemned upon the ground, by one of the arbi- trators, himself then performing for the Company the functions 5 34 formerly exercised by Dorscu—those of wood agent. Dorscu had the grace to swear he made deductions, he could not go the length of ignoring them, although his action in that be- half was voluntary—his successor is able, however, to dis- card them against the evidence of his own eyes, which he has the right to distrust, and against the evidence of honest men, whose evidence Wrote nat was to be believed. More than this, for 3,905 582. cords of this wood, Ciarx had demanded payment of the Company at $2 50 per cord, and held, produced and filed with the arbitrators his voucher for it at that price—-it was marked as an exhibit—yet, for those very cords, it is awarded that the Company shall pay $3 each. ‘The peremptoriness of expression toward poor Crark in relation to this voucher is the only trace of ill feeling toward that abused person to be found in the award or in travail that gave birth to it, on the part of the arbitrators, and it is to be regretted that Ciark was not required in more courteous words to surrender TwENTYy SHILLINGS WORTH oF VoucuEr, upon being paid Tyree Dottars THEREFOR BY THE Company ! This award is now affirmed by the General Term, and judgment has been entered against the Company for $21,475.85 with interest from April 19, 1858. If any Stockholder will compute the interest and add that and the costs of the liti- gation to this sum, he will have before him in dollars and cents what it costs not to modify or to enforce a verbal con- tract made between two men of Schenectady. The cost of enforcing or modifying one will be known when such a thing shall have been done. A careful computation, it is believed, will justify the state- ment that the treasury of the Company would be better off in the end if it had paid directly, instead of indirectly, a Hundred Thousand Dollars to the parties who share what has already been paid and will share what is yet to be paid. A Company which provokes such expenditures as these will have other uses for its revenue than to pay dividends ; and the simple souls who wonder why the most lucrative a 35 route on the continent cannot keep its stock within twenty per cent. of par, or its dividends from shrinking, may as well get ready to speculate why there has come to be no dividend at all? When that day comes the investigation will be made, which too late will show how all was lost, as well as that all might have been saved; and it will not be strange if other Sir Giles Mompessons shall be found to have gone “beyond the seas.” It is quite probable the Court allowed full weight to the consideration warmly pressed upon it, that the action of the power which appointed these arbitrators had been approved by the Stockholders who had re-elected it; and the re-ap- pointment or continuance of the arbitrators in their several offices, was a marked approval of this award by the appoint- ing power of the Company. If the Courr desired to read a lesson to the StockHoLtvers who, through timidity or negli- gence, perpetuate mal-administration, notorious as it is in- famous, the absurdly stringent rules of law in regard to arbitration made it easy to do so. By ignoring as that in- terest the counterfeit which was represented, the Court could readily excuse itself for not standing in the way of a Com- PANY so Willing to be robbed as to take upon itself the performance of the meanest and severest of the labors by which it was to be plundered. The Counsex of the Company represented nobody but himself—the Company stood behind somebody else, cursing his earnestness. In this point of view the affirmance of this award may be worth to Stockholders more than its cost, and that the moral benefit of it may be diffused, it is now made public what has been affirmed. The time is approaching when the Stockholders of this Company will be expected to respond to the annual requisi- tion for their proxies in the usual manner—and it remains to be seen whether the annual farce of an election is again to be acted without any change of persons or even of costume. 36 The Stockholders may continue cowardly and time-serving as ever, but the misuse of their property and franchise by the management they have sustained from the beginning, has worked mischiefs of so serious a character to the moral and material interests of this State, that it will become them to reflect how much longer they can expect the ProrLe to abstain from legislation indispensable to the public protec- tion? Unless some warrant is given that the SrockuoLpErs have virtue enough to rebuke dishonesty, negatively at least, by abstaining from re-electing the dishonest, the CanaL IN- TEREsT Of this State will hold itself authorized to resort to countervailing enactments even at the hazard of being thought vindictive. Further justificaiion of this course may be expected; but a single transaction has now been exposed—others will be. As» _ a THE FINANCIAL CONDITION OF THE CENTRAL. From the New York Herald. We give below a carefully prepared statement of the bu- siness of the New York Central Railroad Company for the last six years, tramed from the Company’s own Reports from 1855 downwards. The receipts and earnings of the Company have been decreasing, yet the Company stuck steadily to a semi-annual dividend of four per cent. until the last. The statement shows that such dividends were made out of capital, or by the issue of bonds—that is, creating new stock and new bonds, in order to maintain the appearance of a remunerating business, and consequently increasing the price of its stock in Wall Street. When we see the direc- tors of railroads among the most rabid speculators on the bourse, we always infer that there is a great probability that the stock in which they speculate, of railway companies in which they are directors, are jobbed according to the management of the road for Wall Street purposes. At the present moment there are many railroad companies that cannot pay their hired laborers regularly, or in full; and back debts for mere wages are accumulating. Railway property is among the most important of the country, but there are too many competing roads, and the transportation of some of the Western railroads must fall off 38 from this cause alone. In mild winters, like the last, the water navigation will enter into successful competition with the railroads. The West is suffering from the continued manufacture of an irresponsible shin-plaster currency, instead of using the precious metals alone. NEW YORK CENTRAL RAILROAD. Receipts. Year. PASSENGERS. FREIGHT. OTHER SOURCEs. 1853 . $2,829,668 74 $1,835,572 25 $122,279 18 1854 .; 3,151,513 89 2,479,820 66 286,999 95 185) .. 3,242,229 19 3,189,602 90 131,749 05 US 3s) ceeds 3,207,378 32 4,328,041 36 171,928 50 1857.6 3,147,636 86 4,559,275 88 320,338 67 1858 . 2,532,646 55 3,700,270 44 295,495 71 Total, . $18,111,015 55 $20,092,583 49 $1,328,791 06 Total Receipts for Six Years. From Passengers, . $18,111,013 55 From Freight, . 20,092,583 49 From other sources, : ‘ i 1,328,583 49 Grand Total, . ¥ : : . $39,532,388 10 The passenger business on this road, it will appear, reached its maximum in the year 1855, since which it has decreased $709,582 64. It was less during the past year (1858) by $295,962 19 than in 1853, (the first year of its consolidation;) or any year since. Earnings from all Sources. PGR PO a EER EE geet LORE RIES SARS Ret 1854, i, boop live 20, Alt, eee 5,918,334 50 FOS GA, o. ukeelome DyeG AE! Baath Weeits | Gpeananeneee 1856, TI eS ee er 7,707,348 18 LS57 «ko sn cok EL Ge eR ee 1858, i I Sled Alp 6,528,412 70 {65% 5, 6,176,795 96 —FEstimating September receipts at $700,000, against $653,000 for September, 1858, 39 It will be observed that the gross earnings for 1859, (fiscal year ending September 30,) are smaller than any year since 1851 : YEARS. CAPITAL Srock. INCREASE. DEcRyasz. May 17, 1853, $22,213,984 Pants ks hte aes Sep. 30, 1854, 23,067,415 853,431 ite 1855, 24,154,861 1,087,446 e oes 1856, 24,136,661 Sue OM 18,200 “ 1857, 24,136,761 eat ee “ 1858, 24,182,400 45.739 ROAR: <. sum tae. \) O1.O86,616 $18,300 Net increase of Capital Stock in five years, $1,969,516. YEARs. BonpvED Dest. INCREASE. DEcREASE. May 17, 1853, $10,731,801 oon Sa Sep. 30, 1854, 11,947,121 1,215,320 f 1855, 14,462,742 2,515,621 «“ 1856, 14,762,898 301,156 Poe . 1857, 14,607,510 Se ais 156,388 % 1858, 14,402,635 Su ocne wee 204,875 Total, . : $4,032,097 $361,263 Net increase in five years, $3,670,834 of Bonded Debt. Dividends paid in 5 years ending Sep. 30, 1858, $9,790,130 Gross Earnings in same 5 years,. $34,744,528 Operating Exp’s do, $18,528,172 Int. on Sinking Fund, 4,985,095 Construction account, 17,524,776 Total Expenditure in five years, . _ 30,988,043 Applicable to dividends in five years, eae about 34 per cent. per annum ; ; 3,756,885 Deficiciency in five years, j . $6,033,245 Partially provided for as follows : Increase in the Capital Stock, as above, . . $1,969,416 Increase in the Bonded Debt, . : ; . 38,670,834 Increase of Stock and Debt, ; . $5,640,250 i nee fa ee rr yat it Sage ata mr terite Me ag 8 ale Wate ik omerae. (Uh > i as - $ . ve = —_— Lithomount Pamphlet Binders Gaylord Bros. Makers ie