The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-05-09
The Broadway Railroad Project Revived.
SUPREME COUKT--GBNBRAL TERM.


Before Hon. Judges Davies, 1ngraham and Suther-
land.
MAY 4.-John Milhau and Others, u.s. Jacob Sharp
and Others-In this case the defendants appeal from
Judgment at special term, perpetuany enjoining
them from constructing railroad in Broadway The
cause was tried before Judge Harris and judgment
was entered April 26, 1854. Mr.. John Van Buren,
appeared for Milhau and others, and submitted a
history Of the and his points in opposition to the
project. The right to construct railroad in Broad
way was attempted to be conferred on Jacob Sharp
and others by concurrent resolutions of the Com
mon Council which, after having been vetoed by the
Mayor passed both boards again in December, 1852;
prior the passage of these resolutions injunction
was granted by the Superior Court on the complaint
of Thos E. Davis and Courtlandt Palmer against the
Mayor, &C., forbidding the making Of the grant in
question to the deendants but both boards set the
injunction at defiance and made the grant. The
members of the boards were subsequently adjudged
in contempt, and the matter was taken to the Court
of Appeals; perpetual injunction was ultimately
granted by Judge Duer against the grant, which de-
cree was affirmed by the general term.
The present suit was commenced in this court the
Sd January, 1853 temporary injunction was
granted, pursuant to the prayer Of the complaint,
and an application made at the general term of
this court by the plaintiffs to have the injunction
made perpetual and by the defendants to di ssolve
it. The plaintiffs prevailed. Issue was joined and
before justice Harris, the lltn IZtn,
18th and l4th of October, I'd, Sd, 4th and 9Th No
vember 1853 who rendered the Judgment which is
now appealed from.
The following are the points upon which Mr.. Van
Buren, argued for the plaintiffs
The resolutions OF the Common Council of New
York, under which the defendants claim authority
to do the acts complained of by plaintiffs, void.
l. The land in Broadway opposite the building of
the plaintiffs far the middle of the street. is the
property of the plaintiffs and cannot be taken from
them for the purposes of railroad without just
pensation.
2. The contemplated acts of defendants will be (f
committed) private nuisance to the plaintiffs.
3. Making the grant in defiance of the Injunction
was an illegal and criminal act. which could confer
no right on the grantees who accepted the same with
full notice.
4. The Common Council have no authority under
their charter to make the agreement with defen.
dants contained in the resolutions and acceptance
proved in the case.
Mr.. Field on the other side submitted number of
points and contended that the power OF the Corpora
ton to make the grant was conclusive. The defen-
dants' plan was to make the railway trunk line,
and to intersect it with line of their omnibuses.
every four or five streets, from river to river and
they gave pledge for the fuflment of this inten-
ton, in the purchase Of omnibuses and horses. With
all this public accommodation and these combined
routes, they were allowed to charge more than
five cents from any one point TO another. IL the
Others had obtained the grant there nothing to
bind them TO take passengers the routes who
would thus be left TO detached lines of omnibuses.
IL was OF great importance to promote the rapid set
Element of the upper wards and divert those who do
business here from residing in adjacent cities. This
would increase the taxable value Of property the
island far more than enough TO counterbalance the
payment into the city treasury Of 100000, even
100000 n year What would do this so well as the
scheme which the defendants proposed, of opening
the whole of the upper wards 10 easy and rapid COM
munication with the lower, and bringing every per
on the inhabited parts of the island within two
blocks Of public conveyance in correspondence
with the trunk railway along the ridge Of the isiandl
He contended that ia this suit the proceedings must
not be by private owners of property, but must be
brought by the Attorney General on behalf OF the
whole people Of the State. In reply TO the argument
against the grant that il would he nuisance to the
inhabitants and property holders, il was contended
by Mr.. Field that whether the rails and cars will or
will not be nuisance is n question TO he determined
when the experiment has been tried, and then before
n civil or criminal tribunal. The Court could not
know that before trial. and until then the Court can
not interfere by Injunction at the suit Of either tax
payer or owner Of Broadway lot. II the railway
on trial is found purpresture or public nuisance
an action may lie at the suit Of the Attorney General
10 suppress it. Decision reserved.