Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 46

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 46

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

"The first translation," says the letter, "was made during our Civil War, while I was in com- mand of the department of Virginia, and when I had many weighty matters to divert my time and thoughts from literary occupation. Although it had been much commended, I was never satisfied with it, and a few months ago I printed it privately, and now I send you a revised rendering of that immortal hymn. The translation of Stabat Mater was made while I was Minister to France. It was more leisurely prepared, and I see no reason to correct it, though I cannot say that it is what I should wish it to be. The stanza of the former quoted by Bayard Taylor is as follows :

" 'Day of vengeance without morrow, Earth shall end in flame and sorrow, As from saint and seer we borrow.'

" It is this stanza (the first) which has always proved most troublesome to translators, and it is the one with which I was dissatisfied more than with any other in my translation, when I allowed it to go to the press. My dissatisfaction was greatly increased a few years later on finding, in one of Thackeray's novels-I do not, at this moment, recollect which-a passage somewhat like this : ' When a man is cudgeling his brains to find any other rhymes for "sorrow " than "borrow" and "morrow," he is nearer the end of his woes than he imagines.' I felt instinctively that any one familiar with this passage would, on reading my translation, be conscious, at the very commencement, of a sense of the ludicrous altogether incompatible with the solemnity of the subject. * * *

" With a pleasant remembrance of our associa- tion in Albany, I am, dear sir,

" Very truly yours,

" N. C. MOAK, Esq. JOHN A. DIX."

In politics Mr. Moak is a Democrat, but he is in no sense aggressive in his advocacy of his prin- ciples, and, though prominent in his party, has never sought office, or been an active politician, except in 1879, when chairman of the State Com- mittee of the Anti-Tilden wing of the party, and in 1880, as a delegate of that wing to the Cincinnati Convention. In 1884 he was a warm supporter of Gov. Cleveland for President, taking the stump and making speeches in all parts of the State. He was one of the most interesting, cogent and effect- ive speakers of that hard-fought campaign, doing yeoman service in the cause which he so ardently espoused.

Samueland

179

THE BENCH AND BAR.

SAMUEL HAND.

SAMUEL HAND was born, May 1, 1834, in the County of Essex, in the State of New York. He is a son of the Hon. Augustus C. Hand, an ex- justice of the Supreme Court for the Fourth Ju- dicial District of the State, who was elected, June 7, 1847, at the first judicial election under the Constitution of 1846.

Among the distinguished jurists called to the Supreme Court with Judge Hand at that election in that district, was Hon. Daniel Cady, Hon. Alonzo C. Paige, Hon. John Willard. Judge Hand also represented the Fourth Senatorial District of the State in the sixty-eighth, sixty-ninth and seven- tieth senatorial sessions.

Samuel, at an unusually early age, exhibited a remarkable progress in study, so that at the age of fourteen he was fully prepared for college. He accordingly entered Middlebury College, in Vermont, but at the end of his sophomore year, in 1851, he was transferred to Union College, from whence he graduated under circumstances gratify- ing to his friends.

He immediately entered his father's office and commenced the study of law. Here he enjoyed rare advantages for attaining his legal education; advantages of which he fully availed himself, and he went to his examination for admission to the bar thoroughly prepared to enter upon the brilliant career which lay before him.

In May, 1854, his examination and call to the bar took place.

After practicing at Elizabethtown, New York, about three years, he removed to Albany, where he formed a very advantageous partnership with the late John V. L. Pruyn: this was in October, 1859. He continued a partner of Mr. Pruyn until 1861, when he became a member of that distinguished law firm, Cagger & Porter, which, after his connection with it, was known as Cagger, Porter & Hand.

Few legal firms have ever existed in the State that controlled so large and extended business as this. Its career is brilliantly recorded in the ex- ceedingly large number of cases found in the Law Reports of the State and in those of the Federal Courts.

In January, 1865, Mr. Porter was appointed a Judge of the Court of Appeals, and the firm was known as Cagger & Hand, down to July 6, 1868, when the sudden and melancholy death of Mr. Cagger dissolved it. In another part of this work we have given a brief biography of Mr. Cagger, and an account of his tragic death, which threw a gloom not only over the city of Albany, but over the whole State. After the death of Mr. Cagger, Mr. Hand associated himself in business with Hon. Mathew Hale and Nathan Swartz. The latter, who had been a member of the firm of Cagger & Hand, continued in the new firm, under the name of Hand, Hale & Swartz. This firm did an immense business, as the records of the State Courts show. In 1873 Charles S. Fairchild, subsequently Attorney-General of the State, be-

came a member of the firm, which was known as Hand, Hale, Swartz & Fairchild, under which title it continued until the autumn of 1875, when Mr. Fairchild was elected Attorney-General. In 1877 Mr. Swartz removed to Colorado, and the firm was continued under the name of Hand &' Hale until 1880, since which time Judge Hand has been practicing alone, doing an extensive business as a counselor. We should have said that the partnership of Hand & Hale was interrupted in 1878 by the appointment of Mr. Hand as a Judge of the Court of Appeals in the place of Hon. Wm. F. Allen, who died June 3, 1878.

Judge Hand carried to the Bench the same un- wearied industry that distinguished him at the Bar. His opinions exhibit the extent of his labor ; they are written in a concise, clear and dignified style, strong and logical, comparing in every sense favor- ably with those of his learned brethren on the Bench.

He was appointed June 10, 1878, and imme- diately took his seat on the Bench. On June 17, seven days after taking his seat, the case of Mowry vs. Rosendale was argued. Judge Hand wrote the opinion of the Court; it was his first opinion. The case was decided September 17, 1878 (74 N. Y., 360).

On June 19, 1878, the case of Lewis vs. Seabury was argued ; Judge Hand delivered the opinion of the Court and the case was decided September 24, 1878 (74 N. Y., 409).

The following are among the cases in which Judge Hand wrote the opinion of the Court : The People of the State of New York vs. The Mutual Gas Light Company of Brooklyn (74 N. Y., 434), Read vs. The City of Buffalo (74 N. Y., 463), Hayes vs. Hawthorn (74 N. Y., 487), Bowery National Bank vs. Duryee (74 N. Y., 491), Dick- inson vs. City of Poughkeepsie (75 N. Y., 65), Can- field vs. The Baltimore & Ohio R. R. Co. (75 N. Y., 144), Bardine vs. Stevenson (75 N. Y., 164), Clafflin vs. Meyer (75 N. Y., 260), Slater vs. Merritt (75 N. Y., 268), Miles vs. Loomis (75 N. Y., 288), Barr vs. Bininger (75 N. Y., 344), Godfrey v. Godfrey (75 N. Y., 434). The last case decided by him was McMichael vs. Kilmer (76 N. Y., 36). This case was argued December 13, 1878, a short time before the Judge left the Bench. The case of Lowry vs. The Brooklyn City R. R. was argued December 11, 1878, Judge Hand writing the opinion in both of the above cases while in office, and they were adopted by the Court. He left the Bench of the Court of Appeals December 31, 1878, and very soon he appeared at its Bar and argued the important case of Wells- borough vs. The New York & Canada R. R. Co. (reported in 76 N. Y., 182). From that time to the present his practice has been largely confined to the Court of Last Resort.

When Judge Hand left the Bench he was suc- ceeded by Hon. Geo. F. Danforth. He returned to the practice of his profession with a large business in the Court of Appeals. His busi- ness has so rapidly increased that since 1870 he commands a practice not excelled by any

180

HISTORY OF THE COUNTY OF ALBANY.

lawyer in the State. In the argument of cases his exposition of the precedents upon which he relies, or which are cited by his opponents, are always full, and if occasion requires, very minute; he develops with care and precision the principles on which they turn, distinguishes them from analogous or conflicting decisions, and as his purpose requires, either presents their reasonings and conclusions in a clear and familiar light, or forcibly assails them with the weapons of learn- ing and logic. He maintains throughout the argu- ment a correct and attractive diction, and always retains the attention of the judges, enabling them to see the real character of the case.

The following are some of the important cases in which Judge Hand has taken a distinguished part :

Susquehanna Litigation of 1869, '70 and '71; Von Woert vs. The City of Albany. There were thirty of these cases, all of them vitally affecting the interests of the city. The quo warranto case, between Thacher and Judson, rival claimants for the office of Mayor of Albany, tried in 1873. The impeachment in 1879 of John F. Smyth, Super- intendent of Insurance. Judge Hand conducted the prosecution of this case for the People on the retainer of Gov. Robinson.

The People vs. Belden, action brought in 1876 by the State to recover about $400,000. This case is remembered as one of the most important ever litigated in this State. It was conducted by Judge Hand from its commencement until after its trial and report of the Referees. These gentlemen were Judge Emmott, Judge Tappan and Isaac -Lawson; they made a report in favor of the State to the amount of nearly $400,000.

Judge Hand was counsel for the Canal Investi- gating Commission of Gov. Tilden in 1875-6. In 1877 he was engaged in the Elevated Railroad litigation, as counsel for the Metropolitan Railroad. In this case the constitutionality of the Rapid Transit act was passed upon. In 1884 he was engaged as counsel in the $1,000,000 Water Meter suit, better known under the title of Baird vs. The Mayor of New York. This list of cases might be greatly enlarged, but, as we have said, it is suffi- cient to give the reader an insight into the exten- sive practice of Judge Hand.

Judge Hand has been honored with several important official positions, of which we shall give some account. In the beginning of his profession- al life, he became attached to the Democratic party, to which he has ever since given a firm and con- siderate allegiance. His high professional stand- ing and learning, his large acquaintance with leading men of the State and Nation, has ranked him among the leaders of the Democratic party. Had not a love of his profession and professional ambition been paramount to political ambition, there is no doubt but he would have long ago occu- pied a very exalted official position, for such has been tendered him, and been respectfully declined.

In 1863 he was appointed Corporation Counsel of Albany, and was re-elected, and continued in office until the spring of 1866, when the control

of the city government passed into the hands of the Republicans. During his administration of this office the city paid no counsel fee, except in one instance.

He was appointed reporter of the Court of Appeals, January, 1869, serving till March, 1872. The six volumes of his reports are from 40 to 45 N. Y., inclusive.

In 1872, on account of his large and increasing counsel business, he was compelled to resign his position as reporter. In 1875 he was ap- pointed Judge of the Supreme Court for the Third Judicial District, by Gov. Tilden, but declined. After the nomination and declension of Horatio Seymour, as the candidate for Governor in 1876, by the Democratic State Convention, it was the wish of Gov. Tilden-then in nomination for President- that Judge Hand should be placed on the Demo- cratic ticket as Governor in place of Mr. Seymour. Accordingly, at the instance of Mr. Tilden, it was agreed by the leaders of the party to place him in nomination at an adjourned convention to be held. Though everything then pointed to the success which crowned the Democratic party that year, Judge Hand, for reasons which controlled him, reluc- tantly declined to become a candidate for Governor. In November, 1875, according to a concurrent res- olution of the Legislature, Judge Hand was ap- pointed a commissioner to devise a plan for the government of cities. The other members of the commission were Mr. Evarts, Judge Lott, Edward Cooper, E. L. Godkin, of the Nation, Simon Sterne, James C. Carter, Dr. Anderson, of the Rochester University, and Hon. Joshua R. Van Cott.

On June 25, 1884, the degree of LL. D. was conferred upon him by Union College.

His love of study, as we have said, was one of the earliest traits of character which he developed. This love of study has strengthened as he has advanced in life. Though the study of his profession has been intense, yet he has never neglected a judicious continuation of his classical studies. His literary taste, refined and elevated by a familiar acquaintance with the best authors, ancient and modern, renders him an appreciative and gener- ous critic, a pleasing and instructive companion.

In 1861 he edited notes to the American edi- tion of "Philobiblon," written by Debury, Bishop of Durham, and Chancellor of Edward III. This edition is a carefully revised Latin text, and trans- lation of three French prefaces of M. Cocheris, a learned French writer and editor. This work was published by Joel Munsell, of Albany.

Judge Hand was one of the first Vice-Presidents of the New York State Bar Association, and was President of that institution in its third and fourth years, succeeding Judge John K. Porter, its first President. At the annual meeting of the Associa- tion, in the second year of his presidency, Judge Hand prepared and delivered an elaborate and highly popular address.

This address has been published in the proceed- ings of the Association, and large parts of it in the Albany Law Journal and other periodicals and

Lyman Demain

181

THE BENCH AND BAR.

journals. He is now President of the Chi Psi Alumni Association of Northern New York and the Mohawk and Hudson River Valleys.

In his domestic relations, Judge Hand is happy, and he is held in high esteem, not only by the citizens of Albany, among whom he has long been a resident, but by the citizens of the State generally, with whom he has been brought in intimate relations.

In 1863 he was united in marriage, by the Rev. Dr. John Campbell, to Miss Learned, daughter of Billings P. Learned, Esq., President of the Union Bank, and a niece of Judge Wm. L. Learned, of the Supreme Court.

Judge Hand is still in the vigor of his manhood, at the head of his profession, with a large and in- fluential and opulent clientage ; he has, therefore, many years of usefulness and distinction before him.

LYMAN TREMAIN.

LYMAN TREMAIN, an honored name in the history of the State of New York, was the son of Levi and Mindwell Tremain, and was born at Durham, Greene County, N. Y., June 14, 1819. "The ancestor from whom he derives his Christian name, and who was the progenitor of the Lyman family in America, came among the first colonists to Bos- ton in 1730. Not long after he penetrated the wilderness to the westward into what is now Con- necticut, and became one of the founders of Hartford." Lyman Tremain's paternal grandfather was a soldier in the Revolution, belonging to the Connecticut line, and participated in many of the battles of that great struggle for liberty.

His father was among the earliest settlers of the County of Greene-one of its pioneers. He was a farmer and an extensive business man, generally respected for sound sense, intelligence and honor- able dealings in the society in which he lived. With his other qualities, he was a lover of books, reading with pleasure and profit the great English and American authors. To his father young Tre- main was indebted for that desire for knowledge which continued fresh and warm down to the clos- ing scenes of his life.

He obtained the rudiments of his education in the best school of his native town, very soon mas- tering all the branches taught there, and then took up the study of the higher branches, which he pursued with great energy and profit without an instructor. He seems to have pursued a judicious course of reading, and he early became enamored with the classical writers of the old English school, of Milton and Dryden, of Shakespeare and Pope. From the solid sense, beautiful diction and imagery of these writers he derived that almost perfect use of language, that versatility of thought and ex- pression, which subsequently enlivened his legal arguments, and gave such attractions to his written productions.

It was Edmund Burke who said that "without a system of self-culture no man can become accom- plished in polemics."

At the age of thirteen young Tremain entered Kinderhook Academy, where, under the instruction

of a distinguished linguist, he pursued for two and a half years the study of Greek and Latin and mathematics, obtaining an excellent practical edu- cation. Leaving the Academy, he entered the law office of John O'Brien, Esq., and began the study of law, afterward completing his legal educa- tion with Sherwood & White, a highly respectable legal firm of the City of New York.

In 1840 he was admitted to practice, and imme- diately returned to Durham, where he formed a partnership with his former preceptor, Mr. O'Brien. The young lawyer received a warm welcome from the people of his native town, and when only twenty-two years of age, they elected him Super- visor, although he was a Democrat and the town was decidedly Whig in politics. After four years' practice, he was, in 1844, appointed District Attor- ney of Greene County. The Constitution of 1846 made this office elective, and established a County Court in place of the old Court of Common Pleas. At the first judicial election under the new Consti- tution Mr. Tremain was elected County Judge and Surrogate of Greene County. He was then at the age of twenty-seven. These offices he held three years, discharging their duties with marked ability. In the fall of 1851 he was renominated by the Democrats for County Judge; his opponent was Hon. Alexander H. Bailey, subsequently a State Senator. The contest was very animated and close, and the result doubtful, and depended upon the action of the Board of Canvassers as to whether a certain alleged return from an election district in the Town of Catskill should be rejected for irregu- larities or counted. The Board rejected the return, awarding the certificate to Judge Tremain, and ad- journed sine die. Mr. Bailey contested this ques- tion by the usual process of an alternative manda- mus, returnable at the General Term for the Third Judicial District.

This writ required the Supervisors to show cause why they should not meet again and re-canvass the votes. After elaborate argument, the General Term refused the mandamus, holding that the adjourn- ment of the Supervisors terminated their power to re-convene and re-canvass; that the remedy of Mr. Bailey was to be sought through a writ of quo war- ranto. This left Judge Tremain in possession of the office. But such was his keen sensibility he would not accept the office, where there existed the least doubt of his legal election, and he declined the certificate and Mr. Bailey became County Judge.

In the meantime his practice had rapidly in- creased, requiring his frequent attendance at the Court of Appeals and the General Term at Albany.

A warm friendship had long existed between himself and the late Judge Rufus W. Peckham, which resulted in Judge Tremain's removal to Albany and becoming the law partner of Judge Peckham, a relation which continued till 1860, when the latter was elected a Justice of the Su- preme Court.

Mr. Tremain's reputation had preceded his re- moval to Albany, and at once gave him a high rank at its Bar.

182

HISTORY OF THE COUNTY OF ALBANY.

Long before the meeting of the Democratic State Convention he was prominently mentioned as a can- didate for Attorney-General. A little incident oc- curred in connection with the subject that exhibits Judge Tremain's high sense of honor. He was invited by a distinguished politician to attend the State Convention, under the assurance that his personal attendance would secure him the office of Attorney- General. "I should like the nomination for At- torney-General very much, but it would lose all its pleasures were I to go to Syracuse and personally seek it." He did not go; but he was there nom- inated by acclamation, and at the ensuing election he was elected, serving two years.

One of the important cases which he conducted was that of the People vs. Mrs. Hartung, indicted for the murder of her husband. Mr. Tremain as- sisted the District Attorney of Albany County at this trial.

Mr. Tremain experienced in this case one of the greatest difficulties of an advocate-that of trying a cause against a prepossessing woman.

The prisoner was a young and handsome wom- an, the motive for her crime being her love for another man. Her modest appearance, quiet de- meanor, her youth and beauty, created the strongest sympathy for her. She was ably defended, but the proofs of her guilt were strong, and presented to the jury by Mr. Tremain in such a convincing, able and exhaustive manner that she was convicted. Her case was removed to the Supreme Court, where the conviction was affirmed. An appeal was taken to the Court of Appeals, where her conviction was again affirmed. In both these tribunals Mr. Tremain conducted the argument for the people.

Another very important criminal case in .which he assisted the District Attorney of New York County occurred while he was Attorney-General- the case of the Italian, Cancemi, charged with the murder of a police officer in the City of New York.

After some progress in the trial, the prosecution learned that one of the jurors was corrupt. The matter was finally arranged by a stipulation, signed in open court by the prisoner, his counsel and the counsel for the people, providing for a verdict by the remaining eleven, and that it should be the same as though tried by the twelve. The trial proceeded and Cancemi was convicted; where- upon, notwithstanding their solemn agreement in writing, the prisoner's counsel took an appeal to the General Term of the Supreme Court, alleging, as a ground of error, that this stipulation was ille- gal and void, on the ground that the prisoner or his counsel cannot consent to a trial by less than the number of twelve jurors. The Court held with the prisoner's counsel, and the conviction was set aside.

In 1859, as Mr. Tremain's official term was drawing to a close, he was again put in nomination by the Democrats of the State, but it was carried by the Republicans; Hon. Charles G. Myers, his opponent, was elected. While Mr. Tremain was Attorney-General he had, upon the request of the Senate, given to that body an elaborate opinion

covering the question of the constitutionality of repealing the act for the Collection of Tolls, com- ing to the conclusion that the act was valid.

His successor, by request, in March, 1860, sent a communication to the Legislature that, in his opinion, the repealing act was unconstitutional, and he brought an action to test the constitution- ality of the act, and to recover back tolls from the. railroad company. Mr. Tremain was employed to defend such claim as senior counsel. On trial at the Circuit a non-suit was granted; the people ap- pealed to the General Term, and the non-suit was affirmed. They then appealed to the Court of Appeals, and the non-suit was again affirmed. This ended the litigation. Mr. Tremain's arguments were masterly vindications of the power of the Leg- islature to pass the repealing acts.

This was exceedingly gratifying to him, as Attor- ney-General Myers had strenuously held to the reverse of this. Thus he stood a leader in his pro- fession, taking part in the most important cases in the State, when the War of the Rebellion broke out.

We have seen that down to this time Mr. Tremain was a Democrat; but after occupying the position in opposition to civil war for some time, he became convinced that it was the duty of every patriotic citizen to use every exertion to sustain the Government in the Rebellion, and he gradually gravitated toward the Republican party as the Re- bellion increased in its dangerous proportions, and when the only questions at issue became the approval of certain of the acts of the Administra- tion, and their probable or possible effect, not only upon the war itself, but after the return of peace.

He was charged by his old political friends with inconsistency in separating from his life-long po- litical friends and joining, as he did, the Repub- lican party; but he felt compelled to this by a sense of duty to his country. In proof of his sin- cerity, he gave his first-born son, "his beautiful and his brave," a mere stripling, to the service of his country; but he parted with the brilliant youth, and, alas ! he parted with him forever.

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 46

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