The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-09-23
Perpetual Injunction on the Ninth Avenue
Railroad.
SUPREME coURT-aKNERAL TERM.

SUPREME COUHT-0ENERAL TERN.
Before Judges Roosevelt, Strong and Cerke.
ssII z2-Apo!los r. Ws.more, HosOsi! Hoppock Robert
T. Stuart and alexander Stuart Appsants, Us. Miner O.
Strong, VILLAIN Radfovd and James AWphy -RoosEvKir,
J-Messrs Wemore, Hoppock and Stuart, the plaintiffs
in this case who are inhabitants Of the city, and also
owners OF property In Greenwich and Washington strei
complain that the Defendants under the name Of the
Ninth Avenue Railroad Company, and under color Of q
pretended grant from the city authorities about ex
the plaintiffs premises, TO their great injury and
noyance and in vioat Of their rights An injunction
strain the proceeding subsequently, further con-
sderaton at Special Term, dissolved aud the complaint
dismissed From that Judgment the plaintiffs have ap
peal insisting that the injunction originally issued in
stead OF being dissolved should be made perpetual On
the part Of the defendants II pretended ha every
citizen has right TO lay rail track in the streets
may 40 H. or IN their discretion, by a resolution
Of the Common Council may grant the privilege, asa
franchise to particular individual association OF ind
viduals Such grant, 1t is alleged, has been made Toe
Judge 90 held at special term. de placed his final dec
can resolution adopted by the Board Of Assistants IN
one year, be concurred in by the Board Of Aderm Of
anoner year SO as TO make IL, without consulting the ex
stng Board OF Assistants, ordinances OF the Common
CounciR or must it, as 10 the OF unfinished business
N other legislative bodies be taken up de nouO' When
tne charter OF 1880 declared that he legislative Yer
me corporation Of the city Of New shoad be
ca Ia Board OF Aldermen AMI Bard OF Assistants,
who together should form the Common Council OF the
city,, It must be considered having adopted, by i'm.
phcauon so far as applicable the uniyersa
principles Of legislative bodies constituted Of two indie
ing-indeed, we may say the common iaw-cf ouch DO
des, as illustrated in the Congress OF the Uned States
Legislatures Of every State in e Union as well az in the
Parliament OF Great Britain (a consisting ofwo bran ;aes
repudiates the idea that the Board OF Aldermen Of
1893 could take up and pass resolution OF tee politically
deceased Beard OF Assistants of 1852 give esc.
law without consulting the existing newly elected body
elected might have been, although not 10 the pre-
sent instance, the express ground opposition
particular act OF their predecessors and for the
purpose Of preventing lis contamination No case has
n "A 0f fhp Sd
States or the upper House of Great Britain and ireland
nave attempted TO give effect to the nchoae action OF
previous Assembly, House OF Represen HJuse OF
Commons, whose term had expired and whose places
were filed by others newly chosen /, their stead To
allow an oppos lite practice in the legislation OF the Cny
Common Council since its new Organization would be al
times to cefeat the will OF the constituent clearly express
ed through the regular channel OF the ballot box and to
render the elective franchise in such nuli.y; al
though the Corporation OK the city continuous body
the Common Council since its division into two branches
Is not Its legal erm Ike that Of the state Legislature
upon whose model it framed is year, api no
longer The Common Council Of 1883 is the Common
Council OF 1852 The resolution therefore set up by the
defendants as their Observation-Disclosures passed by
Board Of Aldermen and by Board Of Asssant:-wss
aresoluton OF the Common Council and aconseq
was not confirmed by the State laws OF April All 1854
The primary object Of that TO prevent the Com
mon Councils OF cities from permitting the construction
msjorty OF the property owners Immediately interest
60 and when u excepted from Its operation railroads
ALREADY constructed in part 1t meant railroads CON-
structed under lawful authority, aud not under grants
licences resolutions contracts which had
made given, passed entered into according to tac
charter, ana which, therefore, having in judgment Of
law, no existence, could no. be 'con6rnei" Toe coa
nrmaton intended Q confirmation against the
state, and not "a against the Common Council Itself an
opposite construction OF the act stead Of the
Common Council from permitting Injurious railroads,
would 60 to sanction roads nenced in violation o.
aw, and which had been per mit.cd at ALL Htving
had therefore, no warrant for is .ncemen., anu
none for its continuance the road in question: under the
evidence, rs not only public nuisance, but a public
nuisance OF which the plaintiffs have legal right TO
PLAIN as specially Injurious 10 them in their ngress aIf
egress TO aud from their places OF business the
such nuisance, is we'll established by numerous dc
ckons can and ought 10 be restrained by injunction
demanded, as in this Case, by the parties spe-ia ~
ggrievsc. The judgment therefore, o. the Special Term
Se all agree should De reversed ard perpetual ojun;
ton awarded.
very lengthy opinion OF judge Strong also reversing
The decision OF the court below, handed in TO tce
clerk.