The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-09-30
THE NINTH AVENUE RAILROAD INJUNCTION.

sElTExBEK 20 - Apotto Wetmore, Hoac.u Honrot,
Rotot L. Sua1; and Alexander Stuart a9ains, Norris O
Storey, lFai,am Rodford and James aIphy.
s Z. s1KoSe THE plaintiffs In Tee Of lots
and buildings wetmore and Hoppok severaily or wasa-
ngon street. and the Stuarts Greenwich street, ali
south Of and below Reade street They respectively ala
the centre Il the street opposite their lots. They
are laycrs a considerable IN the city o,Nex
York. They complain that the defendants threaten AMI
intend construct railway through the two streets
her eutre length and extend pg through the Nnh
10 Fty fret tseet uader alleged gran. from he
ave been adopted by Board Assistants the
fecember, 1852 and by the Board 0. Aldermen on the
iop after the Mayors yei) in November and December
4 the latter year. The plaintiffs that the graft IS
invalid, and that they have right 10 prevent Us opera
ter, as tax payers az proprietors o. iands which -
PROPOSED to cevote 10 a purpose without allowing
Them any compensation, and persons rho Vii
sustain n,s SPECIAL ,pjury 0y ,se construction AM
therefore ask for inuncLlon restraining
the eeponene from entering into, or upon, Greenscn
and Washington streets for the purpose Of laying
establishing railroad therein and from digging up
subver,ine the so, doing any otner acl, in these
street, tending TO incumber lnem 10 prevent the free
aud common thereof the same have been hereto
fore enjoyed The defendants IN their answer deny
mentioned in Their complaint or OF any part thereof bat
they aeee that the ownership s wholly vested 10 the
corporation al the city They aver thai the Corporation
had power 20 make the grant in question: sni that
co-rtc;y made and they state in supplemental answer
,ha, they actually commenced the construction Of the
proposed rircad prior 10 the IN Of April 1884, and tina,
before ina, cay The ,ad road was IA part actually con
suctcd W conformity TO the resolutions OF the Common
Council" ana that on that day the Legislature OF 40
State parsed Vii act ratfyng, confirming, and establish
ing the grant 10 them, and they ADMIT that they
coDstuctirg, and claim tta they haze the right 70
plete and the proposed railroad The Judge before
action tired AT the special term decided
that The construction Of The proposed road along the
streets where sy S ne ya 9' would IN
obsrucing them In Apr ,achng 70 their respective places
Of business, adjoining upon such streets, amounting IN
esc, 70 private nuisance 70 them, upiess the grant i
valid but he also held that the grant legal
and valid, and that The defendants should not be
re,uained from proceeding with the cons,rucNn
Of the read: and be therefore dissolved preliminary
Ilrcor which had been granted, ard rave iudgnen.
or the defendants An apoes from biz decision has been
brought by the painils, aud is before for
d.termnaiion. II = entirely Gear that suits FOR toe
redress prevention Of public wr5ngs where there Il no
preepce o. Injury ~ individuals n their private capayty
be maintained only by, Or 10 tue Or The people
Where therefore, individual without uvokng The ad O
the public call upon courts FOR proeouon, they must
show that their private shs are endangered The priu
tpie is clear to need any h1uat0n, aud too we'll
SUPPORTED 70 rtqsire the citation q any authority a
speaxrg " public wrongs, do act intend 10 nclsdc snch
nay be sustained by cofpo,a.OFs by the mismarnHe
ment % their corporate funcs or property. by their u
These included II the Class u private Yrorks.
Their Ulcers act ia the capacity or trustees aud hr
conduct such Il subject % the rules applicable 70 rdl
vlouis It's 20, a matter which toe people OF the IN.
tire ate IN their collective capacity have any interest, Il
the proposed grant 10 the defendants Ia this Is Of
franchise in the streets, thai woui unquettonably
BE- properly belonging originally TO the Corporation aud
the gIsnt pproyiient and involves breach o. trust
would 'or that bs invalid much as II hal
snapscd from individuals ia theirprivate capacity Thea.
to- tie PLAINTIFF rs eorporato and therefore the oene
caries would have the right bthsf ~ themievcs aod
ctr assocaies impeach the transaction. 10 The
q the Mayor, Aldermen, AMI Cor1n onaly q ~
city of New York Btitton. pamphlet repottl
CHEF Justice Neson Gays that IN the %
paey against the same defendants (9d Hill bs1),
held that The grant Of the Legislature authorizing he
cty furnish The inhabitants with purc and wholesome
water BY means of the Croton aqueiuci re grant
~ 80, cial private franchise, made rel for or
vhte enounent and advantage OF the CITY, ior he
public locd and that the De endants quad hoe
be regarded pirate company aud 70 be cea with
accordingly that trey stood upon the footing 10
whom The IKE special franchise had been conferred.
retain The opinion which expressed in the Mhau
aysinst sharp as Barbour 1901 iast these srauts o.
cen ~ ion 10 construct and In limited maancr use rail
vsvs m the city are n terms Of franchises Toe rcatiu
tors this purrort 10 convey 70 the grantees AMI
conceive, 70 them exclusively, the right to
the provisions therein specified aud they provide thai
the clint stock association which may oe formed
"shsl have the control. Management and direction
he road, and the business Thereof" II
irtrfed on the argument that the resolutions
ii question cannot operate as the grant Of ran
Cbfe. bccause they not under seal But when i
gtap by act Of legislation, and net ny indydUAt
pcrstait H. seal Is unnecessary. There i imta
81 he tine for which the grant s 20 endure,
there any express power Of rey ocaton. IL such pogr
&c Piled from the character OF the trust devov
men corpt ration by Us charter, that would ~, h
pfitc What u granted Of its character az fsnChi5e
vtIe 4 continued. ] do not intend 70 say ihat
y compttent for the Corporation 10 graut
- tidaas franchise in the OF the public s'ests
4 On peak u these resolutions they read if The
rt,nt oud have been valid according 70 its plato in
port provided had betn made IN good faith il sse ~
M bai the plsint1s as.a for unfs h1ness In tb
adntrstration Of trust not IN their character OF x
tsyers. for that would include res ding owners y
feal etsts but benfca-ies osytVtS III trust En-
tNs toriovs tifcuhy . Their way n me rucsu,ss