The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-01

for enlarged pupc purposes and those userssse in the
esercse OF the power not tax payers and
rorporaiors on, the entire travelling public u which
and iaxIsyers OF town In the couutry Insist that they
alone were benehcay int rested the exercise Of the
powers Of CONNIE, 'oOers OF highways in respect the
nubc roads their town, that the power IA held by the
corporation for the sole and exclusive benefit OF the Cor
poranrs II Is he not so held. the Corporation be not
he no breach Of trust. or apv oaesuos
rai'ed in mdicai tribunal, ON behalf of the corpora
exeited or the duty discharged IT. no wever the streets
could nc regarded m exclusively CITY property the CTpo
ration holds tem in trust 70 the benefit the oorporaos
and the courts possessed the power restrain
Of the trustees on the ground hat they we're acting bad
faith and from oorrup, motives Bad faith and corrua
motives on he part Of the Common Council distinctly
Degstved IN this case In the findings OF the cout
My conclusions this branch the case are that the
CORPORATE had the power the ordinance wa. adopt
ed TO authorize the placing OF rail- in Broadwsv md run
ming carr thereon that the couo and regulate
he streets !. governmental over wholly within the
streets are not city property, 70 which pecdnIary trust
pertains for the exclusive benent Of its tax payers and
S and IN which they alone are oenecsy int
endan Sharp aud others, lay rails In broad way aud
thereon, under the prescribed regulations Of the
Corporation, was mere hcen Q, revocable at the
corporate pleasure, but In form Q grant or con
ract IT. effect was not to put away surrender hat
power control and regulae the street. that in soopng
the ordinance the Com mon Council acted as poll ics
body upon governmental subject and In the exercise Of
had the legal right 10 interfere by Injunction either the
compa payers the Auto nsy General; and that
may direct tie sret Department a. 70 he manner Of ro
gusng the Streets but Direct or even cons ,nt TO
anybody else doing a. ything upon them, specious and
(2) Ccncedng that the oct or the Common Council was
Illegal. do not think the action maintained by the
maintained by individual for the redress Of public
wrong Public ikances the subject Of ndct nen aud
qsons Or DSoss
nature Of quo ara"s vo..oas q public .rus
and corrected by equitable action prosecuted by State
Blu. is novel idea that private person may maintain
taxpayer, a. SUCH and sustaining no Injury not common
TO the public, may maintain suit against muscipa cor
poraion or It's grantees for msuser u is powers,
the plaintiffs might have mainaiped action restrain
private nuisance alleged injury their private
properly is doubted but when the case showed that
the nvasons OF no pueblo right was threatened or the
erection Of anything that would be public nuisance,
was manifest error Instead Of dismissng the complaint
to repder Judgment In their favor After holding,
the court below did, that the State alone, by It's At
orney General could maintain the action the complaint
party having q right OF action, whose suit cannot
he fully determined without the presence OF other
parties, and be Is therefore permitted o Introduce
them. was not defect Of parties, but OF any right
In the plaintiff TO sue. The amend ment Of the plead.
ing BY In erpg the Of the Attorney General after 1t
bad been determined that the plaintiffs could not maintain
the action certainly without precedent, and has
coinenane In the modern practice The Code authorizes
any person be made defendant who IL . necessary
party 10 complete determination settlement OF the
questions involved In the action and empowers the
before or aer dsmeDt in futhersnce Of jpce, amend
any pleading proceeding by adding striking out the
name or any party, by correcting mistake in the
OF party or mistake In any other respect by insert
ment does not change substantially the claim defence
by confirming the pleading or proceeding to the fact.
Or; Ssoysa Code lis i,s s1s this does - not
action for another II Is authority for Introducing into
the case an entirely now controversy to shape quit
begun for the enforcement and protection Of private
right into one for the prevention redre. OF q
public wrong Nor, II the court had the power 70
power to allow IT, do think bss tho Attorney GooSrs has
any right to soc In his own name and especially that tho
Attorney General and the plaintiffs could not join in an
the people and Individual may be prosecuted for :
pubic and prvste injury, here there was no private
Palmer and The complaint should have been dismissed a.
70 them; and had II have been dismissed 70 them
these names stricken from the pleading and the suit
been maintained In It's changed form, actions for the
public interest should be brought the Of the people
and MOI In that Of the Attorney General.
But had the action been originally brought In the name
Of the people on tho relation OF the Attorney General II
n0 70 70 ~
government. or impending public nuisance, was
shown. with respect TO the policy Of laying Iron
muiity 10 be divided and this ate npt 70
strain by injunc apprchcnded trespass upon bet
many persons interested raj In the streets Of
city Is not pr puisancc and the courts cannot know
bcforc trial whether II viii be In Broadway. When the
railway IL In operation, he question whether Is nut
sanco may be presented, on The application Of an ag
Uisved party, BY criminal civil proceeding but mot
ill then the courts interfere BY injunction at the
sut of either tax payer ~ner OF Broadway lot
If be found 10 be public nuisance action may ic In
The name Of TIE people, On the relation OF tho Attorney
General, TO suppress It,
s Judgment Of the Superior Court should be reversed
and new uial ordered y. HERMAN, Reporter.