The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-14


hundred thousand dollars, to lay out grade and pave
and giving 1t to private association as railroad
track, without compensation; thus saving the gran
tees that sum in the grading of the road and doing
the grossest injustice to those who have been COM
PEELED to pay this large sum.
q It has been attempted to create an odious mo-
nspoly of indefinite and perhaps perpetual dura-
| ton.
10. As by law or ordinance, if it be such, it is
unreasonable because made upon terms highly inJu-
rous to the city, and to all its citizens tax payers
and travellers.
H. II is violation of the language, as well as the
spirit of the general railroad act, which only auth0-
rtzes the occupation Of highways for railroad by
an Incorporated company upon making compensa-
ton and by restoring the road TO its original condi
IL. It is an attempt to violate, and will tend to the
violation constantly Of the general laws Of the State,
known as the law OF the road.
x. Not only is the digging up OF the streets to
make the railroad nuisance, but the railroad itself
will be continuing nuisance especially injurious to
the plaintiff and others, as well while in the progress
of construction as afterwards.
KILT the Corporation had the power to grant
the privilege of Establishing railroad it should have
adopted the proper regulations concerning the mode
OF constructing and using the track and then have
left the executive duty Of obtaining the best terms
and entering into the necessary contract to the head
OF the proper department.
XII.-Whatever interest in or power over the
streets rghtfuy belonged to the Corporation, it held
as trust to be exercised for the public good; and
the grant of these privileges without any considera
ton whatever with the right to demand five cents
fare from travellers, when large sum might have
been obtained for them, was palpable breach OF
trust and gross fraud upon the plaintiff and other
tax payers, inhabitants, and travellers in the city
XlIl.--If the foregoing positions. or any of them,
are well taken, it is clear that the injunction should
be granted.
On behalf Of the grantees Mr.. Jas. 7. Brady ap.
pears and will submit his points to the court ut the
conclusion Of Mr. Noyes argument.
MARCH 4.-Mr. James 7. Brady on the part Of the
defendants proceeded to argue the legality of the
grant. The defendants declare that no member Of
the Common Council of the city of New York has
now has had, any interest direct or indirect
in the grant Of the right or privilege to construct
the railway mentioned in the complaint in this &C.
ton, nor has any or either of the members of said
Common Council ever received, been promised, or
given to expect any money, property, or reward Of
any kind for his vote. countenance, or influence, in
favor Of said grant That they applied for and pro-
out the employment of any corrupt agencies, and
that the construction of the railroad, conformably
to such grant, will not be nuisance, but will be
great public benefit to the inhabitants of the city of
New York, and ensure the private pecuniary advan-
tage to the plaintiff the value OF whose property will
be enhanced by the construction of the road The
defendants also state that contracts have been &C.
tually and in good faith made by said company for
iron, and other materials to be used in making said
road and for railroad cars to the amount of several
thousands of dollars, all of which contracts were
made before the commencement of this suit, and are
binding and obligatory, upon the company SO
that if they were violated because the making
OF the road was prevented by judicial action,
tn the f fSompa1Sy would be responsible for damages
the company also employed an engineer to
superintend the construction and operation of the
road, viz, Edmund Smith, and have engaged him
for year at the sally Of twenty-five hundred dol
lars. They have also employed a secretary That
when such contracts were originally made, no ap.
prehension or suspicion was entertained that any
attempt would be made to prohibit the making Of
the road. The defendant Mr.. Pearsall says that
before the grant mentioned in sthe complaint was
made the plaintiff told him that there was no objec-
ton to the railroad if the track were laid down in
the First avenue instead Of the Second avenue; that
If such change of its course were made, he and
others acting with him would assist Mr.. Pearsal in
getting the grant; but plaintiff stated that if Mr..
Pearsall insisted on the track being laid in the Sc
cond avenue he 1Stuyvesant) would spend hun
dred thousand dollars to defeat the applicants for
the road. The defendants also assert that the con-
struction of the Second avenue railroad was actually
commenced by them more than month ago-that
before the commencement Of this suit they had laid
the rails OF the track two blocks and when this suit
was commenced, were proceeding, in good faith and
with all practicable speed, with the work of COM
pletlng said road.
The following are the points submitted by Mr..
Brady, for the defendants =
First The plaintiff does not show that any injury is
threatened to his legal rights, either as tax payer
OF by reason OF any supposed interest he claims in
the fee Of any street to be used in constructing the
contemplated railroad. As mere tax payer, he
cannot maintain this action. 1t does not appear that
ne VIII suffer any injury as tax payer by the con-
facts which show that the defendants threaten to
erect any nuisance. The temporary obstruction of
the streets for the purpose Of making the road would
not be nuisance. If it were shown that the plain.
tiff would be pecuniarily injured as tax payer or
would suffer from q nuisance created in making the
road his injury can be amply redressed by damages,
for which there is no pretence that the defendants
are not abundanty able to respond. This is not
in which the plaintiff can maintain suit as one
Of class having common right. And it does not
appear that any citizen other than himself is opposed
to the construction OF the road desires the nunc
ton to be granted. The Court has power to con-
slider or determine whether not the construction of
the railroad would bea public injury or public bene-
fit, nor whether it would increase or diminish taxa
tion-nOr does the authority to interfere by inunc-
ton exist on any ground.
H. If an action like this can be maintained at all,
it should be brought in the name of the corporation
of the city of New York. which is the trustee charged
with the duty Of regulating the streets and with the
government OF the city. That corporation has i'm
properly been made defendant, no request that it
should be plaintiff being alleged.
ILL., The several stockholders in the railroad should
have been made defendants.
w. The corporation of the city Of New York has
power to prescribe in what the surface of the
street shall be paved or arranged for the several
kinds OF vehicles travering it for public private
commodation The laying of railroad track is but an
adjustment OF the street to adapt it for railroad car
If the cars or the track be used as to create nui
sance, the remedy for any injury to party aggriev
ed when such injury occurs, can be applied as in
any other case OF nuisance Neither the track nor
the car can be, per Sc, a nuisance.
Y. The power referred to in the last point was law
fully exercised in authorizing the construction of the
road in question. See the second point with such
of its subdivisions as are applicable to this action
made by the defendants in the action of Milhau agt
Sharpe and others, (the Broadway railway case.)
and the references under such subdivisions. Wheth-
hearing, in opposition to granting the privilege of
making the road is wholly immaterial This Court
has no power to inquire whether the mode of legsa
ton was or was not udicious whether the action
OF the petitioners, or the members of the Common
Council, was fraudulent. If the grant could be
voded for fraud, it could only be on the application
and in the suit of the corporation for that purpose.
Secondly-As to the case made by the answer.
No Injunction should be granted becausa first