Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-05-03

wen Iess aa!horslng Norris to build The bridge and
The deed Of assigamen, of right title interest," &c
&c, rom Morns 10 Coles was read
Inc act Of March Ath, l7s5, was read, authorizing
Coles to build the bridge.
An ACT Of 3eth March, 1897, was introduced, con-
sinlng admssions BY the Legislature that Coles bu
Inc sridge according 10 the provisions OF the act
IRIS was also rected in the plea. This was laid down
as being good evidence, the people Of the state Of
New ork were plaintiffs and had reces TINS IN the
Mr.. Griffin then eontended that the two first issues
were alsposed Of He commended that the counsel for
lhe Planuns had Joined the first issues in
mon traverse; they deny those facts altogether
and we hold ourselves excused il we prove any one Of
nose four issues true, because they traverse them to-
gethsr not in the nature of special traverse but as
| common traverse
Mr.. Gnfia then came to the 9Th issue, whether
1ohn D. Coles caused road 10 be made and cleared
properly for the convenience of travellers.
IL also appeared that by the act Of 1890, the arches
OF the bridge be 30 feet wide the act of 1895
narrowed the arches from 30 TO rs feet.
An act passed in 1897, allowed him to take 80 per
cent extra toll if he made road TO East Chester and
Kept II IN repair for all who wanted TO use II.
An act passed in 1885, released him from keeping
| that road in repair.
The pleadngs therefore aver that he had right TO
exact 30 per centf he merely constructed that road,
yea Or nay. The act of the Legislature directed at
certain time that the read should be opened through
sundry anis, not then opened, although the own
nave received the money those
The only materia! point, therefore, Mr.. g. con-
tended, on that head, was whether Coles made the
read as roads were made in 1897, because upon the
presumption that he had, he his heirs, and assigns
had taken so per cent additional toll and meant TO do
SO for 90 years from the year 1895
On the question whether Coles did sell and convey
divers rights TO divers persons, and whether the de-
PENDANTS were stockholders or not, they called
Walter w. Townsend. He produced the transfer
book Of the Company-dentfed J. B. Coles's hand
writings he also read certain transfers and assign
nsnts of several shares to three of the defendants
from Coles himself The transfer to the other de-
fendant Flseen was first made TO Isaac Clauson by
Coles, and from Dickinson, Rensen, ana Delaplaine,
Clausen executors TO Fuelen. All these transfers
purpsrted to be of shares in the Harlem Bridge Com
pany.
Mr.. Lord moved to rule out this testimony, as ir.
relevant because the counsel did not follow up by
showing that this company did own the bridge or did
construct II.
The Judge asked what was the constitution of the
company This was good time 10 introduce that
testimony If It was afterwards connected properly
with the proprietorship of the bridge, otherwise it
waso no use 1t was at present imperfect, as II did
rot prove the ISSUE
Mr. Griffin then went to the next issue, whether
Coles, his heirs and assigns, had been for years in
the peaceable and uadisbed possession of the bridge
and its profits.
Mr. w. w. Townsend swore that they had ever
since he could remember. Thomson, J. A. Coles,
and w. F. Coles had received dividends from the tolls
Of the bridge for % years Mr. Fluellep had done 50
fer Is years. j. B. Coles, &c, had used and enjoyed
all the liberties and franchise assigned by Morris
John b. Coles died January q 1927 Up to his death |
he partcipatedR the tolls of the bridge toll house
has been kept there and toll keeper appointed from
day to day, and from year TO year, ever since he
could remember these toll keepers were appointed
by b. Coles and the propnetors including The four
defendants.
Nj. Griffin then went on to prove that John b. Coles
gave the requisite security to the of the state
the Of 1895 required viz 1000 pounds, 10 pre-
serve the bridge IN good repair ter 90 years after
which it was 10 be thrown open TO the public. To this
end he offered TO read from certified copy of act
passed March 18th, 1905 in which the legislature aver
that Coles gave the requisite surees and entered INTO
the bond.
Mr. Lord objected TO reading the averment from the
act the net Of 1903 passed for the purpose of
incorporating the propnetors as q company; but they
refused TO accept the act The bond itself ought to
De produced: II was not supposed to be lost John b.
Coles and his assigns ought to show that they gave
the bond and not make the Legislature do So The act
Of 1903 varied the franchise considerably from the act
Of 1885, John b. Coles himself claimed to be a cor
poratsn; the defendants disclaim having anything
to do with the act in their plea therefore they can't in
woke this any section of il to their assistance;
they diselamed heaccepance OF It's franchises, or as
conferring corporate right on them.
Mr. Jay contended that Coles was bound 10 exc
cute that bond; he avened that the bond never was
executed-or If II was, II has not been gwen up- IS
in existence; If be lost It'll competent for the de-
PENDANTS show It's loss. IL the grantee refuse TO
accept contract, shall the grantor be bound by any
part OF t7 We deny that the bond WIS in exist
ence; the defendants repudate the act Of the egsla
ture incorporating them yet they want 10 make use
OF the rectals in that charter shsw that they have
not broken a former act
Griffin stated that he had searched in the State
Treasures Office where such bonds are kept for this
bond, but could net find il. He would swear it if
necessary
Mr.. Lord said they must show that the bond once
existed searching for nothing might find folly;
he would admit that the learned gentlemen had scar
ched all creation, but he would not admit that they
ever expected to find the bond. He coudnt play fast
| and loose with the case so.
Mr.. Butler said that by the particular provisions Of
| the act of 1885, John b. Coles was to construct
bridge within years and TO keep it IN repair for go
years He averrcd that by the act OF 1897, there is
| clear admission that the bond was gwen. The pre-
sent issue taken on that averment but by that
admission the people the present plaintiffs are estop
PEG from denying the exccuton OF the bond; the exc
cutlon Of the bridge was admitted and the bond msst
have been given, for il was ereincident The exc
cution Of the bond was condition, precedent 10 the
acquisition ofany OF the franchises conferred by the
act. Therefore they had receipt in full. The filing
Of this information took place 40 years after the act
Of 1875, and the defendants had thence I'LL now
joyce the uninterrupted franchises Of the act, and
rather late 20 call for the bond to be produced.
| The old rule had grown into a MAXIM and was well
settled in all we'll regulated courts of law.
/ Comma rite prssumuntuE"
4 Tho lau oF ITQS renvirea that hond should be