Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 44

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452

USA > New York > Albany County > Albany > Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations > Part 44

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The first opinion pronounced by Judge Learned was delivered in the case of Gould vs. The Town of Oneonta, at the January Term of 1875, very soon after assuming the duties of presiding justice. It is reported in 3 Hun, 404. This was followed by several cases in which he pronounced the opin- ion of the Court. He seemed to come to his judi- cial duties with that ease and directness which in- dicated a natural talent for their discharge. In 1874 he was appointed one of the Faculty of the Albany Law School. His associate members were Hon. Ira Harris, Hon. Matthew Hale and Isaac Edwards. The department of jurisprudence to which he confined his lectures at first was The Civil Law. These lectures required the expendi- ture of much labor and research-the most exten- sive legal learning. The success which attended them, their popularity with the students, is a sure indication that this demand was fully supplied. In the course of a few years two other departments were taken up as the theme of his lectures, one on Equity, the other on the Trial of Causes. These three courses he continues to deliver.

Among Mr. Learned's literary work was the duty performed by him as editor of an edition of Mad- am Knight's Journal and an edition of "Earle's Microcosmography."

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A very valuable article from the pen of Judge Learned on "The Tardiness of Justice " appeared in the North American Reviewe for June, 1885. It commends itself strongly to the judge, the lawyer and, above all, to the business man ; for, really, the tardiness of justice is one of the great evils of the times, and Judge Learned deals with the subject as one who speaks with knowledge and with authority. He says :

"One cannot begin a lawsuit that involves a considerable amount, with any hope of a reasonably speedy decision ; a year's time would be short for its termination ; and the plaintiff may not reach the end in three, four, five or six years. A short time since a counsel, in arguing a mat- ter, referred to a case that had been pending eighteen years, and was just at issue for trial. The case may be found re- ported as early as 1873, in one of its 'many steps,' and was in fact begun in 1869 (Smith vs. Rathbun, 66 Barb., 402 ; 13 Hun, 47). It has graduated some of its counsel to the bench, and has seen several of the judges who sat in it carried beyond the term of their judicial career. Another case pressed forward by the plaintiff and entitled to a pref- erence on the calendar of the courts was begun in 1874, and, after four trials, reached its happy end in 1880. These are not unusual instances.

" In civil matters, the delay of Justice is a great wrong. Bis dat qui cito dat is a maxim as true in law as of charity. Men can bear what they believe to be a wrong decision, if it be made promptly ; but they cannot bear the uncertain- ties of delay. 'Hope deferred maketh the heart sick.' It is the weary watching by the bedside, not the fatal ter- mination, that tries the mind and body. And so with a pecuniary claim which one man makes against another. * * * Perhaps there is no other cause of delay so great as the ex- tensive right of appeal given by our present system. In many matters that belong merely to the preliminary skir- mishing, as it might be called, appeals to the General Term can be taken, with the result of delaying the trial ; such matters, for instance, as motions to change the place of trial. Yet these are often questions, to a great extent, of good discretion, in which the discretion of one judge might better be made conclusive, for the sake of preventing delay. This, however, is of less importance than the freedom of appeal after trial. It may be said generally that, after trial, the defeated party has three appeals, under any of which he may obtain a new trial. First, he may apply to the court before which the case was tried. If unsuccessful, he may appeal to the General Term. It unsuccessful there, he may appeal to the Court of Appeals. In the crowded con- dition of the calendars, this assures him a very comfortable postponement of the final result. When, however, he shall at last have his canse decided by the highest court, and shall have succeeded, and shall have obtained a new trial, he will not have reached the end. He must go back and try the case again. And, armed with the decision of the high- est court in his favor, he will probably succeed in his de- fense, at the trial. That, however, is not the end. The plaintiff will now appeal ; and when the defendant once more reaches the higher court, he may find that there is a distinguendo, and that that court didn't mean quite what he thought they meant .* Once more, then, there must be a new trial. And once more he may climb the ladder of appeals, and get a new lesson in wisdom from its topmost round-at least a new lesson of patience."

The Judge points out, with much ability and discernment, the serious evils, the delay and expense, in the practice of referring causes for trial.

" References," he says, " are very expensive, and the expense falls on the defeated party. They are always pro- tracted, because the convenience of two or more of the counsel and of the referee must be consulted, and because the referee cannot exercise that power of compelling prompt- ness which can be exercised, by the Court. Thus a trial,

which before a court or jury might be finished in a few days, will be before a referee for months, by reason of short sessions and long adjournment. It is to he hoped that since the recent increase in the number of judges, there will be a return to that practice when nothing was referred, except long accounts. * *

* It is certainly the duty of the State to provide a sufficient number of Judges ; so that, if they do their duty faithfully, there should be no delay in reaching a cause soon after it is ready for trial."

On the 27th of May, 1855, Judge Learned was united by marriage to Phebe Rowland Marvin, daughter of Alexander Marvin, a distinguished merchant of Albany. This accomplished and highly esteemed lady died March 31, 1864, leav- ing three daughters. On January 15, 1868, Mr. Learned was married to Katherine S., a daugh- ter of the late Clinton DeWitt, one of the most accomplished members of the New York City Bar, whose exalted career had been suddenly terminated while yet in early manhood. In 1878 Yale College conferred upon Judge Learned the degree of LL. D.

As we have said, Judge Learned was elected for the long term of fourteen years. As this term was to terminate with the expiration of 1884, he was nominated by the Democrats of the Third Judicial District as their candidate for the office of Justice of the Supreme Court for that district. He was elected, and in January, 1885, entered upon the discharge of his judicial duties with the experience of over fourteen years of arduous labors on the bench.

His appointment as presiding Justice of the Fourth Department removed him from the circuit, or Nisi Prius, the duties of which, as we have seen, he discharged with singular ability. It was his for- tune while presiding as a Circuit Judge to try several exceedingly important criminal cases. So important were some of them that they attracted the attention of the press and the public throughout the nation. Space will not permit any description of these cases, but our work would not be complete without some reference to two of them, one The People v. Lowenstein, the other The People v. Filkins, for the robbing of an express car near Albany on the 6th of January, 1871.

The questions of fact involved in these cases were most remarkable, remotely connected, some of them obscure and apparently unimportant, yet when cleared of obscurity, clearly developed and fairly connected, formed a chain of evidence of such unerring certainty that they resulted in the conviction of both Lowenstein and Filkins. A brief reference to the cases of Filkins and Lowen- stein belong appropriately to this biography :

On the 6th of June, 1871, Thomas A. Halpine, a messen- ger for the American Express Company, got into his car at Albany twenty-five minutes past five, P. M., in the rear of the express office. The car was drawn by an engine to the bridge, now known as the Upper Bridge; a train came over, to which the car was attached. Its doors were ajar a few inches ; the safe was locked and the key in Halpine's pocket. A few moments after the car started a man sprang in, shut the door through which he entered, jumped over and shut the other door. After a few words passed between the men, the stranger presented a pistol and shot Halpine through the neck. He fell, and the shot was repeated. This shot entered under Halpinc's right eye ; the shot was

*Marston vs. Sweet, 66 N. Y., 206, and S. C. 82 N. Y., 526; Urqu- hart vs. Ogdensburgh, 91 N. Y.

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again repeated, taking effect near the right ear. The victim was insensible, and apparently dead. When the car reached the Green street station Halpine recovered sufficient consciousness to recall what had taken place. The car had stopped. By a strong effort he reached the door, faint and bleeding. He called for assistance, which resulted in his being taken from the car. An examination of the safe showed it had been unlocked and a large sum of money taken therefrom. The key had been taken from the pocket of Halpine, and with it the safe was unlocked. The circumstances created great excitement, and for a time the affair was wrapped in mystery. At length suspicion began to attach itself to John A. Filkins so far as the Express Com- pany was concerned. On learning this he fled to Canada, but was followed and arrested, indicted and brought to trial.

What most embarrassed the prosecution was the fact that Filkins hore a good reputation, and on the trial he proved that at about the time the crime was committed he was at his home far up the hill on one of the streets of the city. It was difficult to believe he could have crossed the river and reached his home in so short a time. But his pistol was found near the spot where the crime was committed, by a boy, and Halpine positively identified him as the robber who had assailed him. There were many other facts in the case, on both sides, rendering it, as we have said, one of great difficulty and interest.

The prosecution of Filkins was conducted with great skill and vigor by that distinguished lawyer, Hon. Rufus W. Peckham, then District Attorney, and now a Justice of the Supreme Court. He was aided by William J. Hadley, whose opening ad- dress was most clear and forcible. Hon. N. C. Moak, so well known for his thorough research and unwearying ability, was counsel for the pris- oner.

The charge of Judge Learned to the jury is re- membered as one of great ability and fairness. With exact analysis he went through the conflict- ing evidence, disentangling the material from the immaterial, and presenting it clear and direct to the jury, who, after due deliberation, returned a ver- dict of guilty, and Filkins was sentenced to States Prison at Clinton for a term of twenty years. He had not been there long when he made his escape, and has never since been heard from.

It was never known by the public how much money was taken from the safe, but it was sufficient to induce the company to offer a reward of $5,000 for the apprehension and conviction of the robbers.

The Lowenstein case, like the Filkins case, was one of great importance.

At this time Hon. N. C. Moak was District At- torney, and he conducted the case for the people with masterly ability, and Hon. D. Cady Herrick, who has since filled admirably the office of District Attorney, was counsel for Lowenstein.

On August 7, 1873, a man happened to take a short cut in crossing from the turnpike over the farm of one Jones. On reaching a fence that crossed his course, he discovered in a hollow, or basin in the ground, a man apparently asleep, but on attempting to awaken him he was startled to find that he was dead. His throat was cut and be had been shot in the head, and there were nine bullet holes in differ- ent parts of his body.

In his pocket was found a card of Theodore Grunewald, barber and hair-dresser, 35 Atlantic street, South Brook- lyn.

On inquiring of Grunewald it was learned that he did not know the deceased ; but it was learned that a former workman of his had left his shop early in the morning and taken his wages and other implements with him. On going

to his residence it was learnd that his name was Lowenstein, and that he lived in the house of John D. Weston, who an- swered the description of the deceased.

Weston had recently drawn four hundred and fifty dol- lars from the bank, and, on the morning of August 5, got up between four and five, went away and was never afterward seen, except that he took the Harlem train at nine A. M., which reached Albany at five P. M.

Lowenstein was absent from home on August 5, but re- turned about nine A. M., the 6th, saying he had been to Phil- adelphia. Though a man of small means, he soon had plenty of money, purchasing a barber shop and paying for it the sum of three hundred and filty dollars.

For some reason, on the IIth of August, he hurriedly fled and went to St. Catherines, Canada, but not till several cir- cumstances were discovered pointing so strongly to his guilt that warrants for his arrest were issued, with which he was followed to St. Catherines, arrested, brought to Albany and committed to jail.

Near where Weston's body was found, on the lower board of the fence, a razor. marked L. VII. When Low- enstein was arrested there was found in his possession a set of razors similarly marked and numbered from I. up- ward to VI .; it was proven that he had given away one similar to the others, and marked L. VIII.

The account he gave of himself on the trial was, that he had been to Philadelphia, and was there when the murder was committed ; that he went to obtain a sum of four bun- dred and fifty dollars in money which he had previously hidden in a hole in the wall of Moyamensing prison. The point most embarrassing to the prosecution was, that Low- enstein was away only the 5th of August, returning at nine A. M. of the 6th, while Weston must have been killed the night of the 5th, a few miles west of Albany, not far from the Central Railroad track.

On the trial Lowenstein produced a very respectable woman, a resident of Philadelphia, who swore positively that she saw him in Philadelphia on the 5th, having con- versed with him on the occasion. When Lowenstein fled to Canada, for some reason, he went by way of Philadelphia, and it was contended by the prosecution that the woman was mistaken in the time of meeting Lowenstein.

The trial began January 28, 1874, and was, perhaps, one of the most protracted of any criminal case ever tried in Al- bany. It was one of those difficult cases of fact and law ex- tremely exhausting to the Court, but the well-balanced mind, judicial fairness and learning of Judge Learned en- abled him to preside with great success. Like his charge to the jury in the Filkins case, his charge was a model of judicial ability. Lowenstein was convicted and executed.

" Of Judge Learned's eminent abilities as a jurist or judicial officer, of his superior qualities of mind and character, and, of course, of usefulness, it is unnecessary to speak here; to do so would be but the work of supererogation ; suffice it to say, he has left the impress of his large abilities and ex- tended learning upon the history of the State." The numerous opinions which he has delivered enrich the learning of our reports from the 3d of Hun down to the present time. Distinguished and useful as has been his public life, his life as a citizen is in every way in harmony with his public life, and therefore it is no affectation to say he oc- cupies an exalted position among the people of the Capital City.

Whatever tends to the advancement of its public interests, to the promotion of religion, of educa- tion and the proper embellishment of the city, has always found in Judge Learned an ardent, able and successful advocate. He is now President of the Albany Female Academy and of the Albany Law School, and for many years has been one of the trustees of those two corporations and of the Albany Academy.

Matthew Nale.

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MATTHEW HALE.

The records of the courts of the State of New York bear ample evidence of the high abilities and successful career of the distinguished lawyer whose name stands at the head of this chapter, and whose life we are now to briefly trace. His is a life and career which it is a pleasure to record; though it may contain no striking events, no sensational vicissitudes, it still contains very much of interest to the scholar, the jurist and the lawyer, It is replete with those incidents in the life of all criminal law- yers which attract to it the interest of all intelligent classes.

Matthew Hale was born at Chelsea, Vt., June 20, 1829. His father was Harry Hale, Esq., a descendant of Thomas Hale, who came to New- bury, Mass., in 1638. This Hale was the son of an English yeoman from Hertfordshire, Eng- land.

Matthew Hale's mother was Lucinda Eddy, a descendant of Miles Standish and of John Alden, the son of Miles Standish having married the daughter of John Alden and Priscilla, his wife.

After a careful preparatory training, young Hale entered the University of Vermont at Burlington. At college he excelled, especially in languages, standing first in his class in this department, and was a favorite with his class and with the faculty. He was graduated in 1851. In 1854 he delivered the Master's Oration. In 1883 the Col- lege conferred upon him the degree of LL. D.

Having chosen the legal profession for his future occupation, he commenced the study of law in the office of Kellogg & Hale, at Elizabethtown, Essex County, N. Y. The senior member of this firm was the Hon. Orlando Kellogg, and the junior member the late Hon. Robert S. Hale, an older brother of Matthew, who served two terms in Con- gress with distinction, and was for many years prior to his death in 1881 a Regent of the University.

In 1853 Mr. Hale was admitted to the Bar at the General Term held at Salem, N. Y. He chose Pough- keepsie, N. Y., as his first field of professional labor, practicing there from 1853 to 1859. His first law partner was his brother, Henry Hale, now at St. Paul, Minn. After the dissolution of this firm by the removal of his brother to the West he formed a business relation with Gen. A. B. Smith, under the firm name of Hale & Smith. In 1859 Mr. Hale removed to New York City, and became the law partner of the late Lot C. Clark, under the firm name of Clark & Hale. This firm was suc- cessful, gaining remunerative practice and taking a respectable position in the city and in Richmond County, where it had the leading business. It continued until 1863, when Mr. Hale removed to Elizabethtown, N. Y. Here he became a member of the firm of Hand & Hale, consisting of the late Hon. A. C. Hand, his father-in-law, R. L. Hand, Esq., and himself. The senior member of the firm, A. C. Hand, had been one of the first Justices of the Supreme Court elected under the Constitution of 1846. This firm was distinguished for the varied ability which its members brought to its

large practice, and it obtained an extended reputa- tion.

After the death of Mr. Cagger, which occurred in the summer of 1868, by which the firm of Cag- ger & Hand was dissolved, Mr. Hale decided to remove to Albany, and he has here resided since that time.

On his removal to Albany he became the law partner of Hon. Samuel Hand. He continued his relations with Judge Hand until 1881, though during this time there were several changes in the firm. It was for a time Hand, Hale & Swartz, and Hand, Hale, Swartz & Fairchild, afterward Hand, Hale & Bulkley. These firms succeeded to the business of Hill, Cagger & Porter and Cag- ger & Hand, and acquiring many new clients, had an extensive practice in the State and Federal Courts.

Since 1881 Mr. Hale has been in partnership with Mr. A. T. Bulkley, under the firm name of Hale & Bulkley. We have thus given the various business relations of Mr. Hale since he commenced his practice.

It has been Mr. Hale's fortune during his prac- tice to conduct, as counsel, a large number of cases in the Federal and State Courts, which may well be termed "heavy causes," exceed- ingly interesting not only to the legal profes- sion but to the public. The following important cases in which he was counsel will give the reader some knowledge of the magnitude of his business as an advocate and counselor :

He appeared for the Ramsey Board of Directors in the great legal contest with Fisk and Gould for the control of the Albany and Susquehanna R. R. Company in 1869 and 1870. This is one which may be called an historic case, summoning the ablest lawyers in the State to it. Mr. Hale's asso- ciates in the case were Judge W. F. Allen, A. J. Vanderpoel, Geo. F. Danforth and Henry Smith. Among the opposing counsel were David Dudley Field, William C. Barrett and Hon. A. J. Parker.

Although not seeking employment in criminal cases, Mr. Hale has been engaged in many important criminal trials. He was associated with Hon. Wm. A. Beach for the prosecution in the trial in Saratoga County of Wm. Witbeck for the murder of Millard Griggs, a deputy sheriff, in the execution ofa writ of possession in one of the anti-rent cases ; and has successfully defended many cases for murder and other offenses in the State and United States Courts, the last being the defense of Levi McCauley, who was acquitted of the murder of his wife, at the Essex Oyer and Terminer, in June, 1884.

Few cases created more public interest than the proceedings brought by the English stock owners of the Erie Railway Company in 1872 to obtain the control of that corporation. In this contest Mr. Hale appeared for the English stockholders. He was also engaged in the Mayoralty suit be- tween Messrs. Judson and Thacher, in 1872 ; for the People in the Canal suits instituted by Gov. Tilden ; in the trial before the Senate of John F. Smith ; in a large number of cases brought against the N. Y. C. and H. R. R. R. companies, tried at

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HISTORY OF THE COUNTY OF ALBANY.

the Albany Circuit. He was counsel for the Albany National Exchange Bank in what were known as The Bank Tax Cases, in one of which he obtained a decision in the Supreme Court, holding that the State law taxing shareholders in National Banks was, to some extent, unconstitutional. He was counsel associated with Gen. Wayne Swayne, of New York, for the Western Union and other tele- graph companies in the suits brought by the At- torney-General to recover taxes of these corpora- tions under the laws of 1881.

In the investigation of the charges against John F. Smyth, before the Senate, in 1877, Mr. Hale ap- peared as one of the counsel for the people. This case began March 7, and continued several weeks. Its proceedings occupy about 550 pages. Mr. Smyth was Superintendent of the Insurance De- partment, and was tried before the Senate for de- liberately and wantonly violating the law known as chapter 593 of the laws of 1873. Mr. Hale appeared, as we have said, for the people ; his closing argument, or summing up, was an effort of extraordinary ability and learning. It was listened to with profound interest, and gained for its author the approbation of the public. Smyth was acquitted of the charge against him by the Senate by a vote of nineteen to twelve.

The argument of Mr. Hale in the case of the Supervisors of the County of Albany, plaintiffs in error, vs. Edward N. Stanley, in the United States Supreme Court, largely increased his reputation as a lawyer before the Court in Banc.

It is impossible to read Mr. Hale's argument in this case without being impressed with the precision and clearness with which he presented the real points in issue, or, to use the language of Mr. Jus- tice Miller to Mr. Hale during the argument, "the manner in which he came to the very marrow of the case." He conducted the argument with the calm confidence of one who felt that he could rely upon himself in any emergency. When replying to the authorities brought by his antagonists, he ex- hibited great skill and the nicest discrimination, destroying in a few words their position.

In 1884 Mr. Hale was appointed one of the Com- missioners of Appraisement of the lands proposed to be taken for a Park, or State Reservation, at Niagara Falls, and wrote the opinion of the Com- missioners in the case.

Like most lawyers, Mr. Hale has participated to some extent in the politics of his times. He early gave his political allegiance to the Republican party, but always maintained that independence of thought and action through which he exerted his honest convictions in regard to men and party measures, never permitting his conscience to be governed by party supremacy. He supported all the Republican candidates for President, excepting Mr. Blaine.

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Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 44

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888 Publication date: 1886 Publisher: New York, W. W. Munsell & Co. Number of Pages: 1452

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452