The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-07-31

Rad company Incorporated BY An act Of the Legislature
passed April s. 1881 claws 1881 p. 1921. with power to
construct railroad way from Twenty third street to
the Harlem river and 70 transport property, &C. The
Court cites q the provisions Of the act and proceeds
70 say that December 81, 1884, the Mayor &c. adopted
ordinance permitting railway or track TO beaid down
pursuant 70 this aet, and In conformity with map file
In the Registers ofoe Section Of this ordinance ia to
the effect that u any time after the construction Of the
railway should appear 10 the Mayor Aldermen, &C.. OF
New York, that the railway was, or any part thereof
should constitute IN obstruction impeachment to the
future regulation Of the city, the ordinary OF any
street. or avenue (of which the Mayor, Aldermen &C.
shsuld bs tho sole judges the plaintiffs the drec
thereof shall, the requiston Of the said Mayor &c.
forthwith provide remedy for the same, factory to
The Mayor, &C., or they fail To find such remedy they
sna within one month After such requson pro sed to
remove such railway or other obstruction impeachment,
and TO replace the street good condition
IL was before the said railway was laid down
b section 3D. the right or regulating the description Of
power 10 DO used in propelng carriages on and along the
always and the speed OF the same and all other power
sserved 70 the Mayor, Aldermen &c by the act Of in
osporaton Of the pansi, was expressly retained and
By section 9Th, IL was declared that this ordinance
should not be considered e binding the Coun
Gil should go into effect until the plaintiffs first duly
executed an instrument in writing engaging their part
TO abide by all the conditions, 80 On the 9th January
poraie SEAL and died with the Comptroller an agreement
rectng such ordnance, and covenAnted u abide by
perform all the conditions contained In IT, Having thus
obtained the consent Of the Corporation OF the city
York. the plaintiffs acquired under their &C! OF ncorpora
uon the title to strip Of land, "a feet In width In the
Hsm TSer md HDOa xhcS rsc so,d no. ,ISa the
subsequently, and in lsAs, the avenue vas opened as
public street. in the manner prescrbed by law, and by
which appears that the PLAINTIFF title thus acquired
was sxtiDgushed In December, 1874, and while
the engine house and staiionl depot Of the plan
IN: wa; n, located sa,c on the Avenue at
resolution ordinance requiring the OF
steam power below Thirty second street prior to Au.
until the fall of ls46, when the plaintiffs removed their
engine house. machine shop, &c 70 Thirty street.
upon ne alleged suggestion and assurance OF the Corpora
would be permanent and mot subject to further inter
ference Under these suggestions aud assurances
plaintiffs have constructed improvements the location
named at expenditure OF upwards OF S94 900 roat
on August 1850, the Mayor aad Aldermen &c. adopted
resolution requiring the plaintiffs to construct arch
over that part Of their road which laid in trench
and through the avenue at Murray Hill, aud extending
from Thirty second 70 Forty second streets That the
were INDUCED Is snsy asge to aoquesss 10 this
70 the permanency OF the location. After this Dscem
Der 1854, the Corporation passed resolution to the
run on the tracks OF the Harlem New Haven Rs road
Company on Fourth avenue south OF Forty second street,
eighteen months after the passage Of the ordinance
Upon the argument the counsel for the Police Commis
sioners presented two preliminary objections which
entitled 10 attention. First tart this court has urls
dicton Of action Of this nature against the
Of the city The jurisdiction VI this court partially de-
fined BY section 33 Of the Code or Procedure extends
70 actions which relate 70 the determination In any
Of right interest in ana for injuries TO- property
10 actions Of partition and foreclosure 10 actions
for the recovery Of penalty forfeiture imposed by
statute and 10 actions against public officers CERTAIN
cases also 10 all other actions where the defendants re-
side personally served with In the city,
or when one or more Of several deiendants Jointly liable
mr.
mons within the city and also to actions against corpora
tons created by under the laws OF this STATE trans
the trsnsactcn Of business, within The city or
established by law therein or created by the laws OF
any other governnent for the recovery OF any deb.
damages whether quidated not arising upon contract
made, executed delivered within this State or upon
any cause Of action arising therein. Code 49, i23
12s laws 1877 p 279 sec laws OF 1854, p 464) rms
constitution arcle s. Sec 81 also proviaes that ali cor
porators shall have the right 10 sue and shall suboc,
70 be sued in all courts in Ike cases. natural pcrsons
These provisions OF Law would decisive upon the
question: and the decision Of the Court OF Appeals in the
People, rel Davis and Palmer, va Sturtevapt Is Se
den 1852 fully susans the Jurisdiction the point
here taken scarcely be considered open for dcusson
And proper 70 add TIA. the Counsel Tor the Corpora
ton not only declined 70 present it, but expressly dis
II is objected that ths Court has no jurisdiction TO re-
strain the Police Commissioners thai they are STATE ON
GERS, ard conpoee board OF Safe OIL ssrs aud against
Court a. general term.
In support OF this view am referred TO Oh ass, Lars
will be that the words Estate officers" in the sense
there used only intended TO include sucn as had
who Immediately connected win the government OF
the Stale, and In actions against whom IL was the
duty Of the Attorney General TO appear and defeno
Chrstman FLOYD, wend. 342) rue Police Com,
missioners mere local dntrict officers, and are
thu ter as usee in the scs Of 1851 Sps esnns
proper they may be restrained by this Court la tho
exercise OF ia equity powers In tho same manner aud 70
the same extent ~ other local or county officers These
objections having been disposed Of come to the exs
mnaon OF tho principal question, whether the ordoancs
Intended 70 Dc enforced was passed In violation Of pre-
and the plaintiffs OF the rights and franchises grsud
70 the plaintiffs By the Legislature, without Any legal
authority The Legislative power and control OF tae Cor
poraiion OF the city streets aud avenues within
is limits very extensive and the ouy limitation noon
them that sssy shall DO sppropra.ed to no a.o
10 ali citizens and travellers Everything which tends 10
render the Gets useful convenient purposes OF
within the power Of aud may be exercised BY toe Uoroo
ratcn Bot converting the 10 railroad purposes aud
permkins rail tracks to be laid upon tnom 10 be used by
individual association ia the Transportation OF
merchandise and passengers for hire, Ia devotion OF
them 10 a exclusive ik nature, and nch from its
very character cannot be alike common 70 all travellers
henos the Legislature In the act lncorpoyape the MAN
ts gave 10 the Corporation OF the city express authority
70 grant permission 70 the plaintiffs 10 consruct their road
be laid (Aitorney General The Mayor Of New Yox
Court Of Appeals, December, 1856 Mlhau Va sharp III
bMD., $of. Nbnams vs. CentrA karOad 10 N. Y. Rep
pI Attorney General vs.. The Mayor OF New York 50.
perior Court, general term Opinion OF Boswortb, ~
Although the power 70 give This permission must be de-
rived from the legislature yet h exercise does no, 10
any way deprive me Corporation Of It's legislative couro
over the streets In all other respecs And II is entirely
competent for them 10 impose upon the parties asking
permission such restrictions the Corporation may thinK
proper IN respect 10 the manner In which the raj track
sha be used, and also conditions upon which the right
continue IN the future OF the same MAJ depend But
apart rom the restrictions imposed by the sixteenth
ton Of the act incorporating the psmts and expressly
named 70 the Corporation by the contract entered utj By
the PLAINTIFF, December "a 1884, upon obtaining permits
sion 70 lay their track che Corporation might ~ time
regulate the manner Of and the motive power to
be used upon each track, whenever Va In opinion the
public interests required such Interference This rcguls
ling legislative power Of the Corporation the streets
partakes Of the character Of legislative sovereignty.
Originally conferred by the charter OF Governor D,ngan
1885, confirmed In 1880 by the Montgomere charter,
and subsequently by Legislative grans, II may well be
doubted whether the city can be deprived OF even by
an act OF the Legislature Itself Certain Ia, however
the Corporation cannot surrender any part OF into
the hands OF private individuals, or Of private
corporation, without previous legislative sanction, ana
any anen'pt on hu part 70 do 20 without such