The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-10-30
Declsion of Judge Duer In the Broadway
Railroad Case,


SUPERIOR COURT.
Ocr. 2o--ln the of Thomas E. Davis and Others
against the Mayor and Corporation of the city Of New
York, am prepared to give my decision Before
proceed to state the conclusions a which haye arrived
in this case deem priae for several reasons,
that Ishould give brief history CT the proceedings
which have taken place before me- because these
ceedngs if they have not been misrspresentsd hsvs
been derstood. The brought to hearing
all the issues made by the pleadings liz the May term
last. More than eighty witnesses examined, and
the examir aons OF the Witnesses and the arguments OF
Of the third might With propriety have suspended
the argument at The end Of the secord week. because
sit there during the ensuing wee By the all
the parties the testimony had been taken dswn by .
ser osaphc writer and il sgveed 10Th sides hey
should be governed exclusively by his notet. In the
second place, took no notes myself, and
quently unprerared to exa1nine the eviden,e at
al-and of 10 decide upon questions
of fact which l would have desired TO decide
until supplied with full ana complete copy OF the ,yi
denoe from the notes OF the stenogrs pher 1t quite
evident that fair copy of this evideneswas Indispensable
to but it also impossible to furnish this before
the expiration of twenty days. within which time it would
be mpos sble for tn exam the with sufficient
care stated to the counsel that it would be
mpraccable and that il would be necessary extend
the time. had been convinced, however,, that what
decision might be made, appeal would be taken
the General Term But there could be appeal to tbs
General Term until Octooer therefore proposed that
the me for rendering decision should 10 postponed
the plaintiff acce6ed 10 this request but for
best 10 themselves and doubt satisfac tory
which have never been able to understand the defend
ants refused to acceed to request 1t happened
expected The notes not furnished, ight have
been anticipated until two three days before the exp
ration OF the limited term OF twenty days and within
viii h was required to sciae the question The testimony
that taken by stepoIapher amounts to nearly
two thousand foosI certain that in the aggregate
it would make large octave volume; and all this
of evidence allowed but two three days to read
1t physical inn disability for to
read the testimony in time to give my decision.
Under these circumstances required give my
cision. Having examined the testimony, arrived at
conclusion the question of with some diai-
Guilty TO whether the plaintiffs had sustained specsl
injury, the witnesses, possessing equal skill respecta-
bty and experience swore in the mos positive manner
on opposite opinions. Then the difficulty occurred
whether the action could be maintained in the name of
the plaintiffs individuals at all If the Attorney Gene
raj not necessary party TO the suit This obec lion
was FIRST stated on the OF the motion for an at
tachment The only then given to il that the
complaint did all 60 that this public nuisance from
which the plaintiffs, being Of property BROAD
way would sustain SPECIAL injury Judge Bosw0rth ini
mated very clearly that that the only ground en-
which the suit could oe maintained Such my own
impression at that time though the question scarcely
rat all discussed before me- was unwil ing also to
yield TO my conviction that the Attorney General
necessary party until had given the counsel foe
plaintiff rportuny for arguing that question very
fully Instead OF giving final jadgoAnt in this case
dh ectcd further argument the following question =
Have the plaintiffs right to maintain the action il the
evidence sufficient to prove that the Broadway Railroad
would be public nuisance, from which the owners of
property have sustained special injury? In such
the plaintiff be dismissed in order that the Attorney
General may be mae prosecuting partyS understand
that right make order in this matter has been
disputed, and therefore shall explain in few Words
the grounds which have right to make this order.
trial of question of fact this decision shall be made in
itng within twenty days after the adjournment of the
court at which the trial had taken place has very fire.
quently been doubted and have always considered
IT doubtful question whe her this section of the Code
was intended TO refer to any other class Of cases
ought to be referred to q Jury. But a larpec
construction has been given to it. 1t is that
ton which willing to follow. II has always
been doubted whether this section should be considered
merely drecoral involving positive duty. The
counsel for the defendant have always insisted
this, namely, tnat this imposes by ts terms positive
duty upon the uo and that his failure to comply with
tbs coalition cder- void any judgment pronounced By
MIN on the eNP Piratnn of We time to which he was
limited Thus adopting the Construction, it said that
wherea, have not decided upon this within the
twenty days have lost all Jursdict in the Al
though anu wiling 10 give the constru zion that have
stated to this provision Of tae Cdo the consequence
had rght direct the reargun upon any of the
questions included the by means follows 1t is
the duty well The right of judge to direct new
rqurnent before his na decision is pronounced In nj
where tho evidence is oeoed by court 10 be
conflicting tho court will probably call jury. These
cases are numerous in which this has been pur
sued. After the case has been heard by him, r
IT is doubtful IN his own mind, the should
be referred to a jury have no aoubt tnat
another question IN arguei before Judge Paine
and yself in which Mr. Field appeared defendant
and which was again brough. by argument before
IN the Special Term lunderstoot the plaintiff to say that
the counsel old not call in question my right make
Order did objection Jurisdiction
of the court shall proceed to state the conclusions
at which have arrived after u very careful cxamina-
tion of the authorities bearing upon this question: and
the reasons upon which these authorities founded.
My first difficulty was, whether the Attorney General In
this State possesses powers which, BY the common law,
vested IN tae Attorney General in England. 1t was
supposed that although it may be construed that the
Attorney Gescral in England is necessary party to a suit
of this kird that when individuals by whom the suit Ia
brought unable to prove that they have sustained
any special injury, it by rule OF law that
tn. Attorney General was deemed to be party: and
10 what ba int
possesses any other power than that which is
ierred upon me by the Revised Statutes. l should
be very unwilling indeed to assert positively that
the Attorney General does possess this power which by
the terms of the common law belong to the Attorney
General in England Bat is unnecessary deter
mine upon that point The people of this State are =
sovereign power and their interests involved in all
where that power questioned The people this
State have, therefore an interest in all similar to
the present II 1t should appear upon examination that
these authorities showed along unvarying and unbroken
chain OF decisions in the English courts it is certain that
the Attorney General is necessary party here 1t il
said, however, that this objection cannot be taken.
Section 149 of the Code makes defective party
plant evidence ground of demurrer and rainy,
II had only the right to upon the objection, the
been definitely waived Nv examina t,on of fis case has
led TO the full convection tna the Attorney General is
party without whase presence this controversy cannot
be dett rmined. without going into very full examina
ton Of cases although canr OF but admit that the force
of the rnle is weakened by decision sf the Supreme
cipal corporation is subject OF complaint against
which relief is sought nuisance to the public
u necessary
party Various grounds stated in THIS in which 1t n
copbended that the corporation and thor grantees ought
TO be restrained from building railroad in broadway.
Now, with the sirge exception that the railroad
sumed public nuisance, the otter grounds NAV b0
lined two They either imply excessive power and
authority the part OF the corporation breach Of
ust and in this matter the payers Of this city are
equally interested with the individuals bringing the suit.
Every tax payer has the right to restrain the
poraon from CT power. In the the Attor.
ney General against Poole (second King, 1907 demur
was allowed anu the Attorney General against Wilson,
(eh semi crcuit,) is in point. The reason u
making the Attorney General party to the case il to
protect the corporation against multiplicity Of SUITS and
to Insure decision when tie suit Is broughtn his name
II the paintiss walt for lie verdict of jnry, and ID
sonld 30 agains them then they must pay all the cess
OF the suit Whereas they elect to bring the Attorney
General in ARary, shey at liberty to amend the
appeal and allowed thirty forty davs for the pur-
pose without the ment of costs. Now the After
ney General made party 10 the suit the complaint
will not be changed The parties will settle the order