The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-05-24

MAY 20-7Romas Hope and offers agais,t the Sixth and
Eighth AVENUE Railroad Oomponies.-This was motion
All "rdar &c SHOW Case ubv temporary injunction
granted TO restrain the defendants from runni. "
or second railroad track through College place should not
be made perpetual The plaintiff Hope submits that he
OF Chambers street and College place. together
with another lot Of ground adjoining and the Ian in
extensively engaged In the Wholesale and retail grocery
business for the PURPOSES Of which Is absolutely me-
cessary that there should be space in front OF his store
in College place for horses and CARTS drays ana wagons
to back and stand without hindrance to load aud I'M
load that in consequence Of the of College
contiguity to the Hudson River Railroad station the
opposite side of College place from the PLAINTIFFS store
there's necessarily great crowd OF carts and vehicles
there and double cond track in College place, oppo
site plaintiffs premises would greatly obstruct the street
for public USE and damage his business to runous ex
tent by means Of occupying so much Of the street add
running near the curb stone, and thus preventing
him and hts customers from driving the side walk,
having safe convenient approach to his store The
plaintiff contends that the corporation Of the city OF New
York have right authority either by charter or
legislative enactment e authorize the construction Of
double railway track in College place opposite his pre-
press objections Of all the plaintiffs
MIR. benjamin Galcrsith, associated with Mr.. Edward
Sandfor1 for the plaintiff said this brought
fully before the Court former OCCASION he presumed
it not necessary to read the complaint In detail He
would therefore, merely state that it forth that
the Sixth and Eighth Avenue Railroad Companies deprive
the plaintiff of certain rights ano also that the track in
nv Ss % ns. sns and
made perpetual unless some good and substantial rea
sons be shown TO the contrary
Mr.. Anthem, Jr, associated with Mr.. Anthem, Son.,
for the Sixth Avenue Railroad Company, road To an
dayit Of Samuel lloyd which set forth that the plaintiff
Thomas Hope had erected shed in front of and adjon
ing his PREMISES that he great deal OF bas
the side walk, rendering 1t at times mpassable
and that Sunday when his carts are not in use as
eight have been left standing in College place.
which is too to admit Of such obstruction Mr.
Anthem read another affidavit from James s. Libby Pro
sdent Of the Sixth Avenue Railroad Company, which
stated that Mr. Hope had offered to withdraw all oppos
ton to the two provided each company paid
MIR. SANFORD said that the plaintiff would produce
affidavit, showing that assertions made in Mr. Lsyds
were not applicable to the last twelve months. Mr..
Lloyd's affidavit was made year ago.
Mr. Anderson, associated with Mr. OConor on the part
of the Eighth Avenue Railroad Company read the ada
Wits Of George Law and others, denying that College
place is a very street, that the accommoda.
travel and they deny that the railroad track win be nu
injury to the business OF the plaintiffs They
the resolutions Of the Common Council and they deny
that unauthorized they deny that the railroad Is
any obstruction to the street injury to the per-
complaint should be dismissed Mr. Anderson then read
the third section of the act granting the power TO con
struct those railroads.
Mr. Sanford said that the act Just referred to has
been since the order to show in this matter
granted. The opinion of Mr. Justice Bosworth in the
OF Davis and Others against the Broadway Raroad
decides that such grants illegal The opinion of tho
learned Judge which was BY the Court in gene
e s
ty or validity Of the grant, think It void on the
grounds
First That It grants franchise which the Common
Council has no authority to grant
Second The grant, by the meaning and legal import Of
its terms may be perpetual.
Third The grant is, in Judgment Of law contract be-
tween the corporation and the grantees and in Its legal
import restricts the corporation in the future exercise Of
its legislative powers over the streets.
Fourth. 1t confers upon the grantees and their
ciaes exclusive privileges to partial use Of Broadway
Filth. Il absoves them from an obligation imposed on
them by statute of the State, e r. 424, Sec. 1881
Sixth It confers rights and exempts associate; from
number repugnant 10 and in conflict with the settled
laws of the State.
Seventh 1t authorizes the associates to become ncor
porated at any time under the railroad act although the
road may have been previously constructed and what
may be their number at the time while the act it.
self does not allow Of an after the road
shall have been built nor of less number than twenty
Eighth 1t makes contract which the Common Coun.
Gil has been prohibited from making by the amended
charter of sl9 The attempt to make grant comforting
such privileges mmunites without lawful authority
is uturpaon Of power and the illegal exercise of
franchise, and is void The grantees who insist upon
the right to exercise the powers and privileges thus
| granted, were properly perpetually enjoined.
Sanford continued say that six Of these grounds
applicable TO tho present case. He submitted, frit
that the privilege Of the grant exclusive and power
of repeal The right to order the rails to be
moved is to be exercised only payment and does not
tnues to the parties until abrogated Secondly That it
contemplates perpetual existence in the grantees
their assigns Of this exclusive privilege they have an
express term of three years to complete the rails to Har
LEM river Thirdly There is to be annual license, of
for the YEAR, of each car giving an exclusive
privilege for that term Fourth The privilege is granted
Of charging each passenger five cents other person
carry passengers in this during the term
gates the lssth section Of the laws Of isis ar 4a
in relation to the meeting of carriages and vehicle, in
streets and moving to the right Sixth 1t violates the
amended charter OF lS4e which imposes on the depart
ment of streets and lamps the duty of cleaning the
streets and collecting the money arising from sale of
The 22d section requires all contracts to be made
by the heads Of departments. Seventh This grant
ers exclusive privileges to partial use OF the street. and
may be of perpetual duration.
All these elements covered by the judgment OF
this Court in general term, and but for the additional
act Of 9Th April 1854 there would be question of tho
right of the plaintiffs to injunction They claim that
this has effect upon any that litigation
at the time passed. and so far as the present
and next that far is grant 1t is prospective in
its operaton and does not affect the rights OF these
plaintiffs They also claim that this act is void by
son Of its Indebtedness and want of certainty and
act that 10 thus and indefinite is of any
application For these Mr. Sanford contendei
that the judgment of the Court in the of Davis and
Palmer against Jacob Sharp and others proper iudg
men and should be the judgment of this Court in the
| present case.
Mr. Anthem, Jr, said that when this action was CON-
menced its scope and object far limited than
they are at the present time The plaintiff then prayed
common nuisance, and that 1t about being laid with
out the grant Of the corporation but the plaintiff has
amenced MS complaint by an allegation that the whole
grant is void and that the company have right TO
the railroad through College place. he attacks the grant
itself, and also the Common Council; and the pre-
sents the difficulty whether the plaintiff proceed both
| for public and private nuisance Mr.. Anthem
tended that the plaintiff has interest in the
street In front of his premises than any other citizen he
or his grantor parted with his right when the street
was opened, and by decision Of this court when that
right is parted with, the street may DO opened used
for any purposcs OF travel. The corporation may be
daily seen exercising all the rights Of legislative
regnty over the streets in laying down gas pipes yet
now 1t Is contended that they have not the power TO
grant the right olay down iron groove He SUBJ
mi,ted that this grant came within the legislative
regnfy Of the Common Councils that plaintiff is the party
who eDcnmbers and blocks up the street, by making
stoehouse under the shed In front Of hs premises aud
not the railroad which, IL Is well known great pub
lie accommodation, conveying ten millions Of persons
annually The plaintiff Is led away by the fancied rcsem
hlance between the grant to the Broadway Railroad and
the grant in the present case but there
more dissimlar.
Mr. Anthem scnr., followed on the side at con-
siderable length, and was succeeded by
MI 0Conor, on behalf OF the Eighth Avenue Railroad
Company who argued that the LAYING down OF rails In