The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-01
Superior Uourt-SpeeiaI Term.
Before Hon. Judge Hoffman.
3up EryrH AND sIeHTa AvssUE RAILROAD CASE
INFORMANT ARGUMENT. .n

sourt held in the First judicial DISTRICT by
ssss & thu : sy ' q y S:. 4as s:a 's nd
lawful power or authority TO pass resolutions similar
d tenor and effect to these granted TO the Sixth and
oduoe into the amended complaint the resolutions under
which the railroads owned claimed BY the Sixth and
nsh,h Avsnu; KAu,osd have bssl
further appeared that the plaintiffs informed and
Sssred that the said companies have not authority,
y Of New Ysrt e u.s the Streets ana sysaass nausd
N ths said resolutions for the purpose OF laying rails
soastrueting railroad AID running cars thereon II
Ale Appeared that the rails OF the aid companies laid
b thu said srssa and the running o. the said companies
sass thereon, the same BY them, are .
very serious and constant and containing injury 70 the
psepsrty and business Of the plaintiffs Aad to the prope
and business of other owning property and doing
buBness on the said streets and avenues IL also sp
pared that temporary Injunction had bscn ootssosd
HON Judge Dusi that the sixth Avenue Rsilroad Com
pany had Appeared and had put in An answer de0yins
hat they were parties 10 tho suit The Eighth Avenue
lAroad Company had also appeared but had put In no
answer At the argument bcors Judge Duer, the ques
ass;s.a that sond be ss.sr 70 20 on with
Che Eighth Avenue Railroad Cou pLny, with leave TO
plaintiffs to amend SO as TO bring Ia the sixth IL Nas
perfectly understood that psiats should have ie4ve 70
amend Since then the case las been adjourned frsm
tine 20 time, At the instance Of tbs DEFENDANTS and
sothng been done until the present motion to Amsnd
and make the sixth Avenue Railroad Company also de-
SspdAns to the suit which they formerly pretended by
in<ir answer they we're not.
attsnten Of the court 10 the amend nans sought In
tie rst place he proposed TO add the ae OF the sixth
was defect parties This amendment could not be OBJ
iected to By defendant against another. the posi-
BON taken By the other site was correct the matter must
- disposed Of At the hearing but not 1T present He
sook it for granted that this amendment would be allowed
n natter OF course for IL did not Affect the other de-
o The suit the compl,irt IS r as they acsrnsd
would be dismissed The second amendment ssts ont IN
sysI asnt L. whom the ss Of the ad Vas S ve.sS tns
stood in respect to College place, and averred that
Hope was this owasr OF all the said lots, &s. This
ayerrent was consistent with that proprieta-
~ right OF which Hope clsms 70 be in pos.
session. The object nov u to phase before the court
s decision Of the Superior Court In the case Of S.uyvs
amt and Second Avenue RsiroAd Company. Stuyve
sAnt csd action and obtained Injunction
which ordered the ground that hs tlc'to these
n was Of that trust to grant them for the
struc.ion Of railway. The same question is raised
lsre, and 1t Is submitted that the amendment Is ressoaa-
Ss and proper The next amendment Is the nlroauotioa
ef the statement that the psints are tax payers, and
that they srsd BY this breach Of ruat and the
Council had NOT right hsss streets for the pur
poses Aforesaid grant them to corporations for the
soastrue.on Of .sca roads The plaintiffs in ol.imias
not change the character OF the case, and
are within the lstser and the spirit Of the Code ohap
sect to tbs laying down Of these tracks the Ia
eaa fer stands recorded that the corporation hsd
% sh TO make the grant vas for the opposite side
and the ore already dssited The Eighth Avenue Rail
road Company had never clothed Themselves with corpor
Ass powers. They sociAtos AL corpora
sacn the Sixth Avenue Railroad Company became the
AAAigneee Of the grant made to Libby and otOers and
was not valid as 70 Libby 1t Was not valid 70 them
Mr. Willard, counsel for the Eighth Avenue Rail
rad Company, commended that the complaint
amended was entirely changed from the original
II moved for after the time allowed by law,
sd therefore, it was 10 the discretion Of tss court
whether the motion should be granted Hope occupies
. business stand ct College place, and the Sixth aud
Eghth Avenue Railroads terminated opposite bis store
fhe whole Of the controversy related TO the right OF the
sempany TO construct eighty feet OF track opposite
Hopes premises. Is there then any similarity between
this and tina. which sought in the Amended com
plant vz To pre- 'ent breach Of trust the part OF
he Council II was rot the office o. Al amendment to
make such change ts chArActer should Always remain
the The court will note The I'M uatics In the
gpsl plan the only ground Of oontsst whether
nder the resolutions OF the Common Council the company
had the right mske the deu0s trask in College
ths validity of the grant nss called 10 question BY
SEEMING forward and denying that there WAS any intention
10 c5mpiete the track the parties he presented
entitled 70 the disu sss Of the injun,tou 10 orass -
preserve the action either the complaint the prayer
nnst remain identical Bat here the p.sn,id3 have DOT
sry Ater the whole subtrstum Of t6s ,onp,in, bat
n addition have altered the prayer for Judgment The
correction OF the prayer alters tns waos suope o. the
soticz; a nav renisdy is asked We were prepared
DO deny that the completion Of the track was ever 10
tended Ought parties nov TO be allowed 70 shf shsr
santr,ry to the act OF the Legislature The former
action wss 70 prevent = common nuisance; aow
The btu ned asks for the abatement OF What is
Afseed 10 DO an existing ground OF nuisance.
II is xcon to abste . nussn,e converted into
paAin 10 breach Of trust Finding thSt ms subject
natter cannot be held nuisance tbs party turns round
an asks Leave 70 amend his bill so IS % MAKE IL one fer
breach u trust. Can parties De permitted - bolster
mp their 10 this ynsnSet' By these amend asnts
the comp.int was altered, and the prayer for judgns
altered and II neither Do looked 10 fer the a.
ture Of action where Is II to be ouno9 this be per
ntttsd what may Not De dons under the color OF an
amendment
Mr.. Anthem, counsel for the Sixth Avenue Railroad
Company pross ed against ths doctrine Of chsugns tins
character OF Council on the other side Gale
upon the court to hold certain OPT Mons
jsdsodd because Judge or happened TO have
Judge sitting here Is Sourd Sy no aecIcps .xseps those
Of the High Court OF Appeals. When tie original oon
paint hsd in this II !ntesioS because 1t
Averred that the PLAINTIFF individual property ia
iured ard sought relief entirely that head IL vent
TO pray that the company DO joined from doing that
damage The court should undoubtedly b. liberal In
permitting sulendnsSts, bu' ONLY suoh amendnien
should be permitted sst forth NOR. clearly The pain
hfs' right 70 what properly belongs 70 him Bat how
different Ia II here. The plaintiff, come forward a.
public champions as well IS private champions With
. prayer In tsah capacity Cue suppose We pass
arir,s 3 .rDsss Ia, snrpdn.s. L srsntsa rhs
Attorney General and the sixth Av+nus Railroad
sorpors,on must b. brought in. The proper course
shcud be thst the orgin action Of the plaintiffs should
Be 6isnssei and another commenced De moro Ia tbs
original rplSint they mention parties By name api
49, men ,0ps,sn,snIp uNosr the, ,ns ae o. =, iSs sHa
NE SIKH Avenue Railway Company as a corporaaop
but ,et retain the names They ask leave 70 set forth
resolutions in erso when avermsnt lie sufficient Bat
With regard TO ell their amendments the same general
observation applicable, zTass L "a impossis that
party AK dr,t fer his reei aod then for ihs
RELIEF OF the people ~ large The ssa,ds tnas;
When hs action was frst commenced On order wSs
granted BY Judge Dusr :, sho~ ;ause Why iannctoa
should net isfue. The argument ~as oommsaosd. aud
sornsthing must DO done WITH that argument This Is
like trial aud the party Moves, dusiug the
same to alter the whole CON plexiop o. this Il
must be perfectly clear to all that the sm.ndnsnt
not be allowed.
Mr. sanford In reply raid that the parties -pressn,s
BY the council the other side who spoke last
In position 70 question tbs paints right 10 amend
They d.scAimed any iatsrest In hs sotion Their sos
answer Ia that they have assigned 10 the Sixth Avcous
Railroad corporation Add the latter has not besa made
party None hers have right 20 object 70 bringing
In other psrtes these matters for aud for tns
sourt 1t s not necessary TO make The Attorney General
ApArty, because ~ the decision Of Judge Harris II
hsid that be vas MT necessary party IN similar
On the a ound OF former decisions tbs plaintiff are en-
hued 70 their amendment. making the Sixth Avsnue
Railroad corporation . party As TO tas necessity Of
making the corporation party the be objsctlon
The Argument Of counsel the other side fro
missppreheasicn Of the faots OF the Tney SENS
words the ode which have nothing 10 do with
power Of this court TO permit amsndmsnss OF Allegations