The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-01
The Great Municipal Question Already Decided
by tho Court Of Appeals.
The Charter Of New York City Estab-
lished by Law.
srhe broadway Railroad Case-Decision or
the COurG al Appeals.


the Court al Appeals.
COCkr ar APPEALs.
TAonas Da'is, Gnndnf tai1s>r and the Attorney
Sneroi resIend~~ts us ne vIyor Aidvmen AMI lomm,a
aliy NJ cay of Fork, Jacob Sharp and others, ap
pen~ss-w RIGHT Mot amongst the least striking aud
apooas cnara tercs Of thu, case Is the earnestaess
tenac with which judicial power 10 every stage Of
has been asserted and maintained. Objection after OBJ
jecon the parties the action the relief de handed
the power Of the court have beeo raised met and OBJ
vaied successive Ct the litigation, until action
begun by individuals against municipal corporation
ter minated In controversy in which the Attorney Gene
raj Of the State the comOlanpg party and the corpora
ton and thirty cuz. Defendants The theory Of the
action aud the relief asked have also been essentially
changed nsomuch that II il dic III recognize that be-
fore for review Il the action begun in December
1852, by Davis and Palmer ling themselves "corpora
tors and tax payers Of the city of New York."
The plaintiffs PAWS Palmer, la December, 1852, COM
menced their action aipg that the Corpora ion OF New
York be restrained from granting to Jacob Sharp and
or in any obruc'ug the street preparatory TO lay
ing railway therein The Common Council OF this city nad
adoped resolution or ordinance yielding the PERM sion
OF the Corporation To sharp aud his associates TO
lay down the RAJ 9 for railway 10 broadway which res0
luton had been returned by the Mayor 70 the Board OF
Alderman without his approval At this juncture, the
plaintiffs representing themselves payers and own
OF real In tho CITY undertook 10 invoke judicial
power " restrain what Yves charged by them a. an
abuse Of muncpei legislative power and corporate trust
The ground assumed that the railroad would be
public private nuisance, from the existence OF which
che city affected BY the fraudulent
and corrupt practices and conduct Of those entrusted h
the exercise Of the corporate power Upon the allegations
principally, that the plaintiffs taxpayers, that the
Commsn Council threatened 10 pass the ordinance, not
withsanding the Mayors objections, though much more
liberal and bos for the privilege had been
made, and that the Corporation without power 70
authorize such Of the Streets - allow any obstruc
ton to the binary and free use Of them oy the public,
ked the suit OF private individual that the mu
pcpa government be eponed from any further action Ia
the premises; upon their complaint the Common Council
was eooned by thus extraordinary process sued
by private persons mot sing any injury that
common TO ALL the then Legislative department Of local
The complaint was ans wered denying It's principal ALE
cations, and alleging new matter, hat the defendants
held the street in fee, and had ample power and authority
regulate and permit the lay wing down Of railway
provided by tho JOINT resolution mentioned In tho
paint The insisted that the court with
out Jurisdiction that tie complaint did state facts
sufficient 90 cause or action against the defend
ants for behalf Of the plsn'iffs.
Thus up to April 1858, the s,don pending against
the Corporation aonU and upon the peadngs the defend
ants entitled TO have the temporary injunction dis
solved The plaintiffs, however, allowed toserve
sharp ami his associates This amended pleading, in ad,
don 10 the facts alleged In the original set forth that, in
disregard Of the temporary aion, majority Of the
members elected 70 each board recousdered and passed
the resolution Notwithstanding the objections Mayor
that Sharp and his Immediately thereafter
sgnned their acceptance aud agreed to conform thereto
n writing; tina, the plaintiffs Davis Palmer are owners
In foe OF lots and buildings situate 10 Broadway and they
advised by their counsel that they the owners in
fee OF all the lands In front Of their respect lots to the
centre Of the street, subject only 10 the public easement
right OF way. further stated that Sharp and the
O6neF persons n6meo In Lne Yo5Oiuo0u OF tho COM
rnou Council threatened proceed TO the construction
OF the rsilwsv 10 the ajury and damage OF the
I.!niis, without making any compensation to
they would destroy the Russ pavement, depriving
Che paintifs Of lie benefits, and irrepara,y in.
vehcIss in the street, the Of such rail-
road IN Broad way would be nuisance, especially inja
Eious 70 the plaiBu and ether property owners therein
and Also IN the cuzens tax payers and inhabitants OF the
city, and travellers In respect To their free and
right Of Iasssge The plaintiffs also claimed sni insisted,
she street 70 private ndv dus for the purpose Of cstab
IAshing railroad thertin then was their duty
tees Of the oororaors YAK payers and inhabitants q the
city, accep The Offers made by responsible
which, while they wouo insure equal accommodation
the publsc would secure the highest compensation and
produce the greatest 70 the city and that
grant the privilege " sharp and his .tes was
pepable breach OF trust aud gross fraud upor the p<a
sra o:ne r s .: s1 ,. avees
% Sharp and bis associates might be vacated, annud
ard declared utterly VOID. and they ecjsned from enter
q railroad therein, doing any other teadiug
Der the street obstrust the and com use
Thereof, the had been before enjoyed and useS
Thus IL tha, the pa ats claimed TO maistan the
action for the reason that the cot OF the Corpora ion
amounting TO breach OF trust was injurious TO them
tain any immediate special damage from the erection Of
nuisance All The Injury averrcd likely 10 10
conplssn. was thas the Corpotstoo. IN bad faith and
prompted by oorrupt motives, had been guilty Of breach
OF rust In mot cepng those offers for the privilege OF
'
greatest the city, and thereby relieve the PLAIN
ss and other x payers from the extraordinary burdens
OF caty taxation.
The action was tried In June 1853, without Jury On
the oh November 1885, the found, matter Of fact
that the establishment Of The proposed railroad would not
be pubhc nuisance, Otherwise specially Injurious
the plaintiffs the complaint ordered be again
amended inserting thei EN- under objection Of the defcn
daDts the OF the Attorney General party plaintiff
Was amended, and the Attorney General brought
ns plaintiff, the defendants excepting thereto. AZ this
time upwards II eighty witnesses had been examined and
the action ordered TO stand for udsmcn the 26,h
November 1919 On the sitcr day decision now
fore in appeal was rendered Tho Judgment In remark
able In respect that the oaly material facts In the
view o the court raised by the pieadpgs, found In
favor Of the Defendants Wills the judgment pronounced
was against them The Judge, at special term, found tnat
che railway would not, constructed and regulated
che manner proposed by the ordinance Of the Common
Council be public nuisance, and that the grant OF the
privilege 10 Sharp ana his associates Of laying do wn and
coutructirg the not made bad faith from
corrupt motives, and involved no breach OF trust the
Tsrt ~ the Corporation or Common Council by which
adopted Thee scts being found II IA dicul perceive
how the action could be maintained by Davis Palmer,
Court however, decided that the ordinance was The
grant Of q franchise shcn, from the une Of lis
acceptance by the grantees, became . contract; that
make the grant and oontract and thai the same,
reasons manifest on Ia face, ives illegal and VOID. The
udemcnt indeed, two ID arss sharp and ni,
he perpetualy enisued from euter,us on rosX
way unoer the grant or resoucu Of the Common Coun
al, fr the purpose OF laying or estab snns railroad
cDjoned from granting any person persons the
elusive liberty and privilege Of laying down construct
ing RAJ rosd In Broadway. Toe jadsmest be
bAsed wholly upon legal construction Of the parc liar
resolution granting the appropriate permisston vas
nos doubted that the act was properly one Of municipal
legislation but In the In which the grant had been
made and sharp and his associates becoming parties BY
acceptance, became con1scs upou the conditions act
fsh and tue Corporation had authority W eoter into
The pu,cnar contract For the that there had
been -eerivc exercise of power In the special In
stsncs sharp and hts associates were enycncd; but
that "A NJ
seeks pArsyzs municipal leeislaton particular
subject, for AL future tune. Tho Judgment, In
fsc, assumes 10 divcss the Corporation OF
all exclusive control and regulation OF
che Of the street. and declares, cmphscay that I've
70 the Barem Hudson River and the dercntsve
railways to lay do~u railways In the public streets,
was IN each ca-e usurpatou of corpo ate power.
The Of the Judgment involves several
derat,oos, N which rropose briefly W aludc. l. Was
che sntou n,intsnabe by The psinu, Davis and pam,
either alone connection with the Attorney General
Was error 10 bring IN the Attorney General apary
p>atpuGy Had the Cerporaon the power 10 adopt the
resolution In question: Was the resolution invalid
~ cs' and 80, were the equitable powers OF the Court