The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-06
The Ninth Avenue Railroad.
SUPREME COURT--sPECIAL TERM.

Before Hon. Judge Clerke.
fm 3.-Apolfos n. Wetmore and others ant. Miner @.
StorN and others.-A motion came on in this case for
leave to file a supplemental answer, setting up as an
additional defence the passage last April OF the sAct
relative 10 the construction Of railroads in cities, +" toge-
Their with the fact that the coustru ction Of this railroad
had been commenced prior to this law.
Mr.. A. J. willard, in opening, stated that he had entire
confidence in the defence contain ell In the present an
sver; yet IT was desired that q supplement bs allo owed,
to bring them within the third section Of this act,
viz. -
struction, extension, or use OF any railroads in any of
the cities Of this State which have already been con-
structed IN part, hut the respective parties aai compi-
mics by whom such roads have been in part constructei /,
and their assigns, are hereby authorized to construct,
com aicte, extend and use suck roads In ani through
the streets and avenues designated in the respective
grants, licenses, resolutions, OF contracts under which
the same have been 40 IL part constracted; and to that
hereby conGrmci.
It appeared from & certinsd copy OF this lev ~proiaced,
that y passed the Assembly March %; on April 81 IL
passed the Senate, and on the dh Gas approved by this
Governor.
Mr; II Hilton, for the plaintiffs, read in opposition ar.
Ninth avenue, at Fifty arst street, prsp,ratory 10 iaynr
this railroad, on the 51st o! March Last. when n trench
was dug, about 200 feet in length, sleepers were j.. "a
u, and iron rails placed on them. That on tue a tscnoon
Of April Sd this trench had not been hlled. that this was
the only part OF the railroad constructed prior TO the
law in question, and that no description OF cars have
ever been used upon these rails.
ES.Chief Justice Beardsley followed, arguing THAT
when ttislaw was passed no resolution or grant had
ever been made by the Corporation authorizing / as rail.
road. That the grant under when the Defendants claim
was drst passed by the Assistant Alderman De ,embsr
20, 1862; that on January LIST following, these is slant
Aldermen went ont Of Office AMI q aew boa I'd CAGE In.
That on January 18th the Board Of Aldermen pa.se ~:
on January 18th nde Mayor vetoed IL; on Noysmb n 18th
the sams Board OF Aldermen again passeI h. over
the veto, and ON December 2sth, another AMI duTe cent
Board OF Assistant Ahermsn concurreI This was claimed
10 be Illegal, and contrary to the city char. er, which was
said to be similar In respect TO the manner OF legislation
under II to the constitution OF this State and the
United States. That 4, was uuhcard Of for a bill 20 mss
the Assembly, and the next year after the members OF
that body had gone out OF Office, cor IL 10 be taken 10
and passed by the Senate. Surely no one would question
such a proceedlrg being entirely void. Further, that
the resolution passed in 1852, and vetoed, was entirely
different nom the one passefin Dccem Der, 1853, because
the nrst required tho construction OF the road TO b. com.
nepcei prior 10 May !, 1858, and the last require Il TO
be con menced prior TO May ] 1854. that thus Il was
an entirely void act OF the Two boards, which had never
been submitted 20 the Mayor for his approval. Ia any
aspect, this law could not help the defense, and they
should not te allowed TO set u up, inasmach as their
proceedpgs 10 bring themselves within IL was = fraai
upon The law. ~ vas absurd to say tina. digging a ditch
20 feet long, and throwing into /, SONS timbers with
rails upon them, wa "a railr Dad In part eonstrust.ij
within the meaning OF this third section. n are could
he no ground for prctence that this ~ ad more than 10
say 10 those com 3anies who had gone a In the consiruc.
Of their road un Ter a vail grant, that they ualsat
20 on aud ~conplcte their work, without bang
subject 20 the provisiors Of the h,s. tvo see
tions u this law, regsir.s ~ The consent cf the osnea o.
Al. .srtwsw