New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-02-22

and the Aldermen and Cpuuionslfy
We eo'apelea TO perf1rm eet during his absence
ne lmpIkcpmert OF the Mayor held 10 Vtistc this
SCI aud also IN Gaze Of the death Of MsyOr ths only
eo' ne Conuoc Council could perform would b %
proceed 70 The elecrOl Of Z Nsy0r-ani thaL N me
giant o. any privileges that all the integral parts Of the
CSrpo atlOn .hOuld tie sdmiffed tra; Csc tue
resOution NSs legislative set thai the Boards ns1
po"e without lie concurrence Of the Mayor out in this
ease II Wa not legislative. He commended thar If the
Resolution IL 10 Be regarded q by law instead Of a
Contract, that il Il sui void because the power to
ztaoish railroads hes NOT been granted 20 the Com
Ron Councli TIE CoUscil hal crsGt ID monopoly and
ss gwen the contract with exclusive privileges. ant
oFs Perpery aid 81 jrOus 20 the community
he also coniended that toe Corporation could pass
Iy-is~ IN urous 70 trade which this would be by OBJ
stTIet1g the streets-snd sheydid pRss would be
invalid The counsel conrentcd that the erecting rail-
ROAD IN Broadway would transfer the business 20 other
localities, and would also impede the passage where
with the cars al the rst proposed be put the road
would De constantly impeded fOr tlree-qusrssrs OF
mile Tor villain each hour of the day. and that though
provides tbs, the tracks would be only 1919 ess dis
isri rom each other, b could project on the outside
snd from the narrOwness OF the streets, would obsrct
The way. He then read the aihdavts OF Messrs. 0Su
hysn and Sharpe which stated that this road would
Eeye tie street which was very natural conclusion but
Il DID not contradict what was alleged by them a. 10 the
Obstruction, and that the materials being prepared and
ready the track could be finished months and
there would se only - feet in width taken up and not
more than 80 feet in length, serious distractions
could occur, and that the doing away with the Omns-
the rails, with an inch groove and even with
the pavements, would not prevent vehicles run
ming IN any way In all the letters AMI athds-
wits produced there nothing that contradict
the statements made by the plaintiffs in this case and if
any particular person was aggieved by any act of the
Corporation he bad night to apply 10 the Court Tor re-
Eei n also toe per-ons amensbe could indicted for
pubic nuisance-and 60 long az there any dispute,
and the Intervention OF the Courts sought that pro-
ceedinCs could be taken in the matter by the Common
Council Counsel also referred sec I2 OF Charter ls4a
fnn
from doing executive act and which specially
ted the Street Department, and that IL was only by
separating the executive from the legislative power that
there could be any hope 10 check the corruption IN the
Common Council OF NewYork. IL was only the power
Of the Common Council toprepare ordinance that such
Railroad was necessary but as the use OF Il was vslu
able privilege, refer the entire matter to the Commission
OF Street, direct him 70 advertise and then let the
tract according the ulhmen OF the provisions OF the
Charter g ing him power 10 do Counsel then
tended that II the Common Council had the right 10
grant this Railroad that then the community had right
In II as 4 was common property ana was only held IN
trust by the Common Council 20 be used for the best
aGvantage but much this trust parted with
fudulently, il invalid and imperative. The hrst
proposition made by the parties for leave TO con-
stluct Railroad from Manhaitanyiile without naming
any sum, and while this pending there were
eral offers usde for the construction OF this road
which would have been more advantageous to the
City Treasury, and only charge cents fare which i,
contended was not made IN good faith aud one for
cent fare and accepting the very conditions OF the
resolution In Mr.. OSulivan's affidavit he says that
there was only one otter 10 construct this road on the
conditions that given to Sharpe and Others, but
that this offer did not embrace any proposition 10 settle
with and compensate tse omnibus pToprietOrs on
Broadway, which 20 be done by the grantees
Ths the first time that this matter intro
duced and this offer had never been laid before the Com
mon Council by Shape and others, no more than by
the other parties, and there could then be no official
knowledge the subject by that body. The act was
fraudulent the part Of the Trustees in the case and
consequently that the act invalid aud should be
done away with, and by several authorities the trusts
Of corporate bodies for the public was the same
as tue trust Md for individuals, and acts done
could be vacated the ground OF fraud and
colusiOn and breach OF trust aud though the
Court viii not interfere where trusts properly
ercked yet it will where the trust is wantony
upty exercised, and TO prevent injustice; aud would
be in such cases whoesomely exercised, Tor they viii
not be held properly exercising their right and acting
illegally and contrary TO their authority.
ExChief Justice Jones-The Court will find when
they 20 consider this point that there neither
grant nor contract respecting property.
Mr.. Van Buren, went on to contend that In cases Of
fraud nuisance that they could Interfere There
direct allegation OF particular corruption, that
any Alderman had received special sums for his
vote on the occasion, but yet there general charge
end was the intention 10 present before the COurta
charge OF dishonesty. Indeed that such the case
co.ld admit of doubt when there some
open, barefaced violation OF right, and shameless ei
fTontery displayed in acting with such haste contrary
10 all remembrance and information. Mr. Van Buren,
continued bis argument till the rising OF the Court. Mr.
Field answers him tomorrow morning, and he will be
followed by ExChief Justice Jones and the argument
IN the VIII be concluded by TX Chief Justice Bron
son, it having been arranged that but two counsel will
tIeIk on each side
There was no excitement in the Court, and the only
peTton IN immediate connection with the proposed rail
road who remained through the entire day, was Mr..
John L. OSulvan who took copious notes Of the pro
cecdngs.
The following the points for the plaintiffs, the
motion to continue the Injunction.
The Adjournment Of the Board of Aldermen from
tie 4th to the eth of November being than three
days put end TO that monthly session OF the Board
and when the Board subsequently, met in pursuance OF
the ADJOURNMENT, II Was not legal assembly, and could
do no valid act
I-Makng the grant in defiance of the injunction was
an Illegal and criminal act which could confer no right
on the grantees.
II-The Corporation has no power 70 establish or au
thorize a railroad in Broadway.
a. The fee If the land IN the site OF the street, il in
the owners OF real property ON each side al MEDIUM
tEn ria subject only 10 the easement or right OF way
az IL exists.
As the law presumes the fee TO be in the land owners
each eide OF the street usqa al alum ri9 those who
Aege that the Zee ID elsewhere must prove the act
The corporation must produce its title II il have any
c2) Having nothing but easement night OF way,
the Cooperation has right TO dig in the soil for the
purpose OF laying rails and constructing railroad IA the
street, nor can IL grant any such right to others
g. Digging in the soil laying rails and constructing
railroad IN the street apprOpriatng the property 70
anew use, and one which rs exclusive inits nature
a. The right OF eminent domain is in toe State snd
the power exercise the right for the purpose Of estso
Lshing railroad in Broadway has not been delegated
10 the Corporation Of the City Of hewYOrk nor TO any
one else.
(5) The land in the site Of the street cannot be taken
for the purpose Of establishing arslroad, without max
ing lust compensation 10 the owners VI the soil
90 Constructing railroad IN the street. would be an
injury 10 the plaintiffs and other land owners because
tey dedicated the property 10 such purpose,
and because the property on each SIDE Of the
would be Deprecated in value
v-An citizens and travellers have night 10 the free
and common OF the carriage way Of the street. and
every part Of H. with their carts and carriages. and the
COrpoEstEn has power TO grant 10 others any par
tculT exclusive OF the street or aEy parT of u
10 allow it, grantees 70 use the street IN any way
which - not alike Common 10 AL
VTne resolution in question "a MT law, but con.
tract; and the Common Council, without the Mayor,
has no authority by lsv 20 make contracts.
a. The Common Council Itself calls j, grant which
ore Kind OF contract, and the grantees say the
thing