The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-23
TIE BROADWAY RAILROAD CASE.
Supreme Court.
spERcH oP MA. D. d. FIELD ON BEHALF OF THE
GRANTEES.

FEB 22--J0hH Mtttan and Others rs. JACOB
Mr. FIELD said-This is a notion If the Court
please to restrain the defendants from proceeding
under a resolution of the legislature OF this city,
II is, therefore, in itself grave question, and II i
still a grayer from some Of the circumstances winch
have attended the discussion heretofore Here Is an
open conflict between local court IN this district
and municipal body and great deal OF extrane-
Gus matter has been brought into this case 10 which
shall only allude so far as To counterfeit any elect
which these observations may have had. The com
plant sets forth various facts, some OF which are
sworn 10 positively and some only upon information
and belief. For example, one OF the very material
points in the plaintiffs is that they owners
OF Broadway. Now, II there be anything IN that
point and ii 1t is to be made the foundation for
Injunction, it should be made to appear positively by
adequate proof The allegation is that they are,
they verify believe the in fee of the property
IN Broadway; and that is the whole allegation
The allegations viii CHI have been great deal relied
upon in another court and here, IN respect to the
TAXATION the city-the increased taxation and the
causes oft-are all upon information and belief
Even these gentlemen have not ventured 10 swear
that they know ANYTHING or have reason to believe
but only that they do believe 1t; and that IS assigned
a the fundation for injunction Then, again, to
illustrate the careessness with which these alega'
lions have been made, let me call your attention TO
the allegations upon folio of the complaint, which
are positively sworn to-"that the street in said
city OF New York, known and designated as Broad
way, is an ancient street. opened about 500 years
ago." yet the affidavits annexed to the complaint,
state that these gentlemen know the fact of their
knowledge, and swear TO it. or are made to swear to
it by their counsel. Folio AZ is the beginning of
long series OF allegations in respect Of the suit in the
Superior Court and the service of the summons
complaint, and injunction the Mayor and the
service OF the summons and injunction on the Alder
men and Assistants yet under these facts do these
gentlemen pretend to know it of their own know
ledge, and all is sworn to as their positive knowledge
Of these facts. Now, in the first place,
under what circumstances is it that plain
tins can ever obtain an injunction? 1t is
only in case because it is expressly provided
for by the code where it appears upon hecomplaint
that the plaintiffs entitled to the relief demanded;
and where such relief consists in whole or in part in
the restraint of particular act then II the COM
mission of that act pending the litigation, will pro-
uce injury, the court may restrain 1t Professionally
that in the first place it must appear that upon
the complaint itself the plaintiffs will be entitled to
final injunction upon the allegations OF the complaint.
A temporary injunction cannot be issued, because,
although it may be very convenient to tie up the
pear that the plaintiff is entitled TO perpetual in
junction upon the Judgment, according to the allega-
tons in the complaint, that he has asked for that
perpetual Injunction upon the Judgment and that
during the litigation, the performance OF the act
which he seeks to restrain, would him material
injury and besides all that you are to prove the facts
they not merely to be alleged but stated upon
adequate proof, by the affidavit of somebody who
knows the fact before you can issue the injunction.
These observations | make preliminary to the
main discussion, because they will become material
when come to consider those opinions in the Supe
Tor Court, one OF whish, you will observe, Is, that If
Judge had issued an injunction upon blank piece
Of paper without any allegations at all, that the
parties bound to obey it, that it is perfectly
good and that all you have to do when you wish to
procure injunction, is to 60 before any Judge at
Chambers, and make such request, and he, without
any paper, or without any OATH will issue an inunc-
ton, which is binding upon the parties With these
observations proceed to examine the points in the
case; and the first is that the Corporation of the
city OF New York has the power, under the charter
and subsequent statutes to allow railway to be laid
IN. dUav
power in dividing the street into sidewalk and car
rageway and laying pipes beneath; and it has also
exercised similar power in the cases Of the Har-
lem, Hudson River, Second, Third, Sixth and Eighth
avenue railways. The Corporation has the power
independ ent Of its ownership of the street. The
learned counsel cited the following in support
of his positon:-Dungans charter, s 2; Kent notes,
b., p los; Montgomery charter, l6; Kent's notes,
H. H., p. l42; Act Of 1913, 272, 27s, 28s; Act Of
July II, 1924; Barb 52S, Drake agt. Hud. r. r.
Co.; 10 Barb, 26, Plant agt L. |. r. Co.; 10 Barb,
Barb, asa, Adams agt Sar. 4 Wash. r. r. Co.;
Dana, 2S9, Lex. Il o. r. r, agt. Apologize.
maintain in the second place, that the Corporation
is the owner OF the street in fee. Now, the plain
lifts allege that they the of the street in
fee, upon belief, not on information and belief, but
on belief only and we have Mr.. Turner's affidavit,
which states that the Corporation has all along had
the exclusive control OF the streets as to laying
down pipes, and doing whatever they chose to do in
regard to them and that the owners OF the street
have purchased permits to dig under it. To the
Is II.
mans letter to the Law Committee of the Board of
Aldermen. Now, | ask the Court whether, with
these facts before them and with nothing under the
sun but the mere belief of Mihau and others, that
they owners in fee Of Broadway it cannot be
pretended that you authorized TO grant in
junction upon any such notion as that these men
have ot title q interest in the streets Of this
city ther than that1 every other inhabitant of
New York has in the public streets? My next point
is that, the Corporation having the power it was
lawfully exercised in the grant by the Common
Council to the defendants in this case, OF pernis
sion and authority" to lay the railway This is
spoken of by the counsel very emphatcaly
as grant, and it is sometimes called a grant
upon our side But a grant of what Not
grant of any soil-not grant of any title
but it is grant permission, an authority.
That is what it is 1t is the grant of license 1t is
just such grant as is given to thousands, to build
oriel or bow windows, or to lay down pavement at
persons own expense, instead Of having it done by
the Corporation officers. The power is to be exer-
cised by the Common Council, and the notion that
Che consent OF the Mayor is indispensable TO its
x,- is without the least foundation. (Montgomery
Charter { Il. le. amended Charter of 1880, /,
II, -; Amendments of 1s49 ], g. ice Common
Council was legally assembled when the resolution was
passed The adjournment from Thursday, the 18th OF
November to Monday the sth, did not render the sit
ting of the 18th invalid. The meaning of the provi
sion that neither Board SHALL without the consent Of
the other, adjourn for longer period than three
days. is that it shall not stand or continue adjourned
for longer time. the provision had been, that 1t
should not adJourn Tor more IMAM one Gay, IL mBut
have adjourned from SATURDAY. to Monday; two
days, from Friday to Monday; and three days
make from Thursday to Monday. Under our State
constitution, which forbids an adjournment for
more than two days, each house is in the con-
slant practice Of adjournng from Friday to Mon
day; and under the federal constitution, which
foTbids an adjournment for more than three days,
each house adjoUrns at pleasure, without communi-
eating with the other, from Thursday to Monday.
(See Congressional Globe oflS45, PIP. 49, 1872 1876,
DIP. 28, 81. Senate Journal Of N. Y. for 1852 PIP.
IS, 20l.) The injunction out Of the Superior Court
directed TO the Corporation did not suspend the
power Of the Common Council, nor affect the valdi-
ty Of the resolution. The injunction was void for
want Of jurisdiction. And although that Court might
consider it "higbly immoral to question its juris-
diction, not only question IT, but insist that there
Is not respectable authority TO support it. If the
injunction valid, and forbade the passage OF the
resolution the only cnnsnnnence Of IT, valatinn