The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-03-25

Again In Court.
sUPRKK COURr-sPECIAL TERN.
Before Hon. g. D. Strong Justice.
MARCH A-.yacoo Sharp The Mayor, Aldermea. AND
CbmmoWaly Of the CRY Of Ne1 York. Fernando Wood,
Mayor, and OAe1.-rhs court room WAS crowded this
morning. to witness another act In the drama Of the
Broadway Railroad arising out Of Judge Strong having
granted an injunction, Saturday, restraining the
clerks OF the Common Council from transmit6og and
the Mayor from signing the resolution adopted By the
Councilnen Friday last, resembling the Broadway
Railroad grant to Sharp and his associates After Issuing
the injunction Saturday the Judge granted order
returnsbe this morning. for the plaintiff to show cause
why this INJUNCTION should not be modified revoked
Mr.. d d. Field appeared for the plaintiff and on the
otner side Mr. Lorenzo B. Shepard the stoa
Counsel and Mr.. John Van Buren, appeared for Mayor
Wood.
The Broadway fully represented by Mes,rs.
Stewart, Swan HAght, Waldo, sam oson aud Wolfe and
many Others including their lawyers, exJudgs Boards
ley ard MIR. Henry Hilton.
against this interference by the Court III the legislative
action Of tae Common Council that In possioe
the could this injunction bs maintained because
if the grant resolution, Tor Whatever il might pro-
perly be called valid and able then the
tempt to revoke amounts to nothing But il the geau
is revocabe then A. mAnifestly the right OF the
Common Council psss resolution that end igat
exists to restrain them and their action should not be
stayed.
the following Pc nts on behalf Of Mayor Wood =
First The whole power over the ssrees Of tbs city,
egislstivs power which the Judiciary cannot control
This proposition has been uniformly insisted Oh by the
plaintiff and to dsny It now would bs gross breach Of
faith towards the Corporation.
Second. II the foregoing popostinn be correct this
Court has no authority to inquire into the rsasons Tor the
exercise Of this power. Those reasons
The gross breach of trust by which the grant WAS
2 The want OF authority in the Corporation to make
fha rant .iuinN kv he and n mar iDr
Courts
g. The contempt of the process OF the Superior Court
which was committed in making the grant
4. Toe clear inability of the Common Coarci to tie
fs authority over the streets
s. The necessity OF exercising power which by tbs
grant and the functions upon been restrained
and nullfed for more than th-ee years
Third II the plaintiff has valid grant the passage of
the resolution in question caunot avoid or affect it,
Fourth 1t the plaintiff sustains legal damage by
the passage of the resolution the Corpora ion is seun
Mr.. D. D. Field argued for the plaintiff that the other
side were Ike the engineer hoi;vsd by his owe pear -
That he WAS merely applying the rules b bis
oppont and protested sgans the Cor pcrat taiog
heard opposite side to him question wharea
he bad ten retained to assume contrary idon-si
ludDg TO his having argued counsel for tue Corpora
ton in this Broadway case, he claimed that opposing
counsel here usiog arguments against him which
he had been making before the courts sincs 1852 with
out success sni insisted that they doing without
ever haviz paid him any fee for their prepsratioa
The argums mt very nterestiog and while 1t was
proceeding Jrogs Roosevelt and Clarke took heir seats
the,b nct for the forming Of General rm. ac ned
to this for the special purpose OF hearing the
guuent in the Ninth Avenue Railroad case,
At The conclusion. Judge Strong announced that he
would render a decision on Thursday next.
The General Term vas then opened
THE NINTH AVENUE RAILROAD.
B fore Hon. Judges Strong. Roosevelt and Cerke.
ApslJos r. Wetmsre and OILERS Miner c. Story and
OiAos-1he argument in this then commenced,
the plaintiffs appealing from the decision Of Judge Co vles
Affirming the right Of the defendants to construc. and
A. D,iir n r,nh
Washington streets.
* Judge BeardsI.y, John Van Buren, and Henry Hill
ton appear for the plaintiffs, and the are re-
presented by their counsel Charles OCoOor Esq, and
Mr.. Mcneil
Mr. Van Buren, argued that the plaintiffs ile this COM
plant obtain relief against the plated Of
the defendants, which, ia claimed, reavsn seious
iojury to their lights Those rights are:-
lat Az lsxpay ess and corpora 10 restrain any
lawful disposition OF the corporate property.
ID. As no!cers and occupants OF property the line
Of Green sca and Washington streets restrain any
int rfeIe with their legal enjoyment Of their property
The plaintiffs claim to DO the acts which they are
atort to perform under the authority Of 81 alleged reso
luton of the Com Cour Gil. this is valid aataor
y it constitutes defence to the action and whether
it Is valid not the plaintiffs have OBVIOUS right
to he nee. r.sy Of making the Attorney General prose
cutir party. THIS not being an action to restrain
corporation from exercising anehe or % forfeit iss
charter, or in tact suit against ths o at ALI
IL il action BY certain private individuals against GER
tain other private individuals To restrain Appreciated
vlClAtion OF prvetS rights. Nor VIII this Court nov
hear an argument the question of the night OF
In behalf Of him self AMI such Others choose
to bee me parties to the action; to restrain illegal
disposition Of the cooperate property even oy the corp
ration itself. And when iuegai Interference with
public street Is Threatened, Of pro-
petty upon the stree: has uniformly bean adiudgec
by his Court entitled 10 restrain .srf reoce
The evidence shows til ct the plain the year 1853
paid exceeding si3 COO for taxes their property in tbs
city also, that they ally aud occupy property
uptn the line Of Greenwich Washington streets and
have owpo and occupied for msLy years past Also
that tie construction Of ina proposed road you'd nure
the premises o. the plaintiffs 10 cegree, and to
tent which this Court a. SPECIAL term standing in place OF
q jury found end 6e'elmined-weuld b "a private
nuisance respects these plaintiffs Als, that
sonsble individuals offered 20 Construct the proposei
read and to the Corporation 800 license tee each
car and charge but three cents fare instead Of the
Anc perm tilted in the alleged grant to the defendants
Other testimony offered At the trial by the paintis
showing bad faith in the Masking Of the alleged grant to
the teeId dante, but WA obe ted to. excu led BY tbs
Court and exception taken. 70 testimony off -red
the part of the defendants, showios why the alleged
grant was made TO item, or why more advantageous
offers rejected why competition allowed
notwithstanding it appeared from the veo of the Mayor
that their attention directed to these os
lone 70 the alleged grant The grant question
originally passed in the Board Of Aldermen Novemoe
2, 1852 as grant to Kipp Brown. 1t was amended
the defendants and il several other important pArcu
lars, and pas ed december g. 1852 The terms Of Office
Of the members OF this Board Of Assistant Aldermen
expired by law the drst Monday Of January, 1883
On January S, 1853 the resolution as thus
amended passed by the B,ari of Aldermen
On January IL 1858, it returned to the Bead OF
Aldermen BY Mayor Westervelt With hi, sons. On
November a. 1855 il again passed BY the Bard Of
Aldermen an1 notwithstanding such objections On De-
ceber e. 1858 1t ccncurred IN by the then ard
of Assistant Aldermen, Notwithstanding said Mayors
objections. The offer heretofore referred to present
ed to the Board o! Assistant Aldermen by the President
thereof November 23 1853. On November 90 1858,
petition nerousy signed BY owners and occupants
Greenwich and WashiI gton streets, was presented
to said Board Of Assistant Aldermen, requesting =
hearing en- the subject Of this grant. such hear
ing was promised, out never granted The ersa.
value OF the privileges sought to be contsrrei
the defendants shown by the fact that the proposed
railroad will be the only extending the southerly
extremity Of the city Of New York. and the right OF way
for lie entire length lex seeding twelve mies) grant
ed without any compensation whatever, ualsss the
License fee Of $40 per be called such coupensa ion
The tried before Justics Cowies nencng
June IT, 1885, and the testimony closed the Goth
OF same month. The cause WAS summed up July Ii,
H. 70 and 20 1863 On August H. 1885, this Justice de-
cided the The judgment ordered was, that the
preliminary injunction, previously granted, should be
made perpetual 70 strain the Construction of the
proposed railroad intermediate the sou,herly line of