New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-10-05
Lii y LNI,kLLLGENCE.
THE -y4BrEM RAnyhAD CASE.


rHF INJUNCTION Dissolved.
Ten y aut NaSor. So ed tts lAW lOrS ana
ht7',n Rurlad Cemf,ry.
THIS morning J;ige Brady delivered an elaborate
opinion, dssolyire he preliminary ,punctcr hereto
fore granted against n, defendants srt deuyng the
motion for perpetual Injunction. tbs leaves the
Common Council free .,sct or the resolution 70 re-
SEND the ordinance F-ohib.sug the ne Il -team
Fourth avenue, below Forty..econd sweet. The
following : tie opinion
BsApY. J.-This actie1 was brought TO The pr
pos~ ~ Iiretlay etJ s ,ir Mayor, Atcunee -. Cou
noaaiiy o ne C'y Of NV y from grarhs pe-''iol 90
tie N-WYors aud la lem ''nst Company ny other
en- par; ~, 81 pgF's ,i 9 Sn is so ,.ga'
below OF south ~ For'yoc 90 - rom f'nos ne eN
istius prohibition against doing created by res'hn sp
proved by the Mayor De- = 1855 snf rom 'sTearr that
rrs luton aud also to prevent 'h' and Harlem Nei..
rad Conn from 49, any COMPANY or rerson
- any steam en- CINE upol their track oeo" OF soa OF
Two questions age presented by o' sprHca'iOn. which r''''
necessarily De- considered and d.cid
Fisi Wheeler the the anticipate resolution Is esi'A"e y"
S.osSy whether the use Of +, an by the New York ard
Harlem Railroad Company, in the manner complained d. -
number Of propositions pre- -sd and argued on The
motion iudeutay bearing these 0yesions which no 'he
Of Them would be- val soe # the authorities 90
which reference will be made not conclusive.
Ia rerruse 20 he frst question the e. Of the Legislature
passed Apr o. 1851, Incorporating the Newfors ana Harlem
Railroad Company cnisIred upon ina, cenpiny power 20
TIE north bound, Of fweutyhud stree =" any punt on the
Harlem River between certain speciality described boundaries,
mechanical power of any cnbuaton Of them
sond ..icn Of that ei the ocafion hin prescribed
i;, ,y, rle min. 20 The APPRECIATION Of the Common
Council Of the City OF New-Yors.
In addition to his nv the 10th section # the the
Corporation Of the CITY OF empowered To
late the and Of using the road aud the speed WIN
wLichcaase should be permitted to move on the same or
tder and by virtue that the Mayo Aldermen and
Comoualy BY ordinance approved Dec y iSS granted per
The said COMPANY 10 construct and lay down IN Plr
81 their act OF ncorporaton railway now USED oy
them, from Twenty third sr''t TO Harlem Rwer
From this briv. statement of the origin of his Company u
viii be tbs, authority emanans from the proper
places given only construct railroah, but 20 use
motive power and that the location u sue road nav
ug ,ernned IL the manner prescribed ~ the statute
a % prs, ~ @ d. poydd by SETON IL Of the ac,
before mentioned aud Ae power over eets derived
from various charters .
The rish, steam therefore as motive power having
thus been conferred upon the Company an ordn"e @" r
tiou determining the point which must cee Is not grant
license bl, exercise of the power 70 fe}nlaie
l. grants rohus' and When I limits the use 81 81 a a. a
Incorporation ye, the Of the original gran, or
leg v. POKER of Corporation the street" which par
tas Of the character Of Ssatye s9yeIe4y asNins BEEN
originally Conferred By the Donsan CnaIter N ineH anH on
fred BY The Montgomery chaeT aud su6'eqsen, by Ies
lA'e grants il may vel b. doubted whether me cy ' o.
York and Harlem RailIoad Company The Mayor &C. Com
mon Pleas =, And A. on this subject see hH"'H l'''' ."
think thus appears that the resolution which The plaintiffs
sppheni would II passed be- purely legislative in II, characte
aaihrzed by law aud subject coltro at the Coat
M myo s Ma opinion III q jude Tbs r2D' ana
But resolution referred could be construed as grant
It would be valid being authorized BY At Of me Lesa.e
Day The Mayor Kernsn 5ct The People Vs. siur'e'
In the CAS-. Of Davis, Justice DEMO refers The Charter Of
the NewYork an HAem Railroad Company - Illustrative OF
tn, power Of the Municipal Government 70 license me qs49h
Of railroads in streets when authorized thereto ny me Le
ure maturity of tAe Judges decide ma ~ me absence o."
any authority the grant Sharp and his associates iof
II is no answer view that they have BY ordinance
heretofore limited the of steam 20 fortysecond street be-
cuse the power 70 regulate II continuous and discretionary
NewfOrs aud Harlem Railroad Company vs. The Mayor Ae
Tgurr non Blsas-s GtI
H. disposg this branch Of the Il l. proper 20 say
assuming claimed by plaintiffs that the New York and
Har cm Railroad Company have not complied with the ord
uauce Of the Common Council OF KEEP hr.r IA an
respects reference to the use OF IN" Fourth eyenue a. r
road those do not warrant the Interpolation OF Courts
upon ,ee PPcation OF hi5d parry eo"eyer Strongly ney
the exercise OF their regulating power.
They matters resting entirely between the common ooh
and the Harlem Railroad Company OF "hlch me Former
should doubtless notice, remedy 10 the faithful dis
Id,eu pr Per say that in matters which discre-
,ioary charge nproydeu' legislation does not authorize
The interference Of the Courts There may Of
public necessity pubic benefit which viii influence the Com,
Council repeal ordnance short tim" since defended
as just legislative policy. however extraordinary
that may but have no power ~ case IKE TINS ~ can
There being then, 20 prevent the repeal Of me
ordinance OF December n 5 the second question presents
Wb,tler the use Of by the Newyork and Harlem
Railroad Company Is authorized by law have adopted ms
because II seems 20 be established beyond
controversy principle ana authority IaA' hat Is aH0heu
I'd seb, r. R. Co.. Barber. 5ls See also 5 Barber, 49,
Brown IS susquchauna H. Co.. Herman 49Ll ltn legal
~
bic authority per Justice Hand Harris Thompson
BsTber 50. Davis The Mayor. Sc hsran, 5%il Ia
Ger. on railroad Broadway would be public nuisance yet
j. sd y De1S hst ~ b 70 TO- Sa, II pced
there without right authors OF the act could not defend
Themselves from te charge Of nuisance - aid stated further,
ia. the authorities ave 10 doubt upon ;he question"
II however hing BE- authorized by the Legislature which
by he common aw would be nuiscanee aud hee BE-
Gees power conferred or Irr>usy IN It's exercise
j, would b.. nuisance pro taHt0 (RsuSk vs. Morrl A'
SIS Hill 57e And IN actions @ recover consequential dam,
from the OF steam on railroads anc tn9rlea
~ as not in conformity - the law authority
no exercised viii proper care a1t skaL Chapman ", Inc
WI. ans The ~ u Central R T. Co. 10 New-fors Rep,
The er, exercise o the franch though may in
and interfere with HI f enjoyment otheah and
pofy BY producing Effects u The sense. OF ON
srulsace provided as slEesfy sgssted the precise ts
I. / Dot shown IN ,hs cs, that the NewYork and Harlem
Raoad Company eHercisDg he privileges oi Ihen charter
ne objetn so. the q south Of Fory'eeoad
Upon principle. evolved ~ cases and on le a. Is
ard clastauccs disi1sed by the complaint aud rapFfs
utt.d should feel a. lbery .. deeraDe ,tat tIs Ia
stem below Forty s'-ce. ty tac Nes i1's a.
Railroad Company Nuisance which shoha gr i \ -
once there was - A.; o. he Legislature s..oA., -
win slfh az sct tes4e s u = eq.lls ~ a. .,e, uo
Teascus LeEriI beors sss-ued, th4t sugA ase % ''
Il ga. ir-ed i, ne s4ea,.er. TIA. he LeEla.re Lad -
power su auttorze The creation o. existence - A
ri- The D - - Tri.ia,Ir. 70 .u5yert common
ha- been ploye I'd u uumberess instances and i- s " 90
beu a. med In snv as. IN ,h.s that aware of
Iuct 3D. o - uot an uncommon thing % ma an lA
tors I'll. state, Ac principle thai ~ -'Y ~
com ou .au must BE- tt.icy Construed h.s!s IS
s4I r Bslbe- .oj u How ard P Rep IL lLete IT, LoHe,
urher answer " this Proposition AID D. - i--, 'l Or
,e .os.r /. not yeT s nisanse, ard therefor graz
the usL. esI-s. be sad ~ BE- Inc 'ea''A O'
T. nay indeed with propre'y Be ai, 'ha ',es q. no
IowtE e pTac.c-i tiF go u lPA -siy
au.lst l-dhI+lab., H. lse ~net IL ll u -e "uo
wosa, Dut psc.ry ;ns country seems irI- upon am.
Lf space, LY facilitating and e1p'.--. -at Lft Oh "'f
aid lel.ou different points & ds-l1n b- We 7 ap
arc lrreer !. possible. should b. regulated VIZ regard 2