The New York herald., 1863-10-30

atare have IN the sixteenth section OF The act or
ssl S..'s $1,000 2 tssmssvss Se ssh: 70 grant %
pany ths right 70 operate double truck in two To-
cations entirely distnct This not Intended BY the
1851 and although he cot Of 1852 makes no mention Of
Limitation 70 dOuble track, must be construed in con
os As S
Ihe eject Of tnc deoudans Interpretation is TO au.ho
RHO this corporation with tho OF the local autho
rites, 70 ay and construct railroads every
pied street. and avenue Of the Island OF Manhattan Il
nvest this COMPANY even under the superntendsoce Of
the Common Council. with powers and privileges 90
sweesng ana 90 nprenensive Tho aot must receive
main purposes OF Its original enactment except far
additional powers are plainly conferred.
tension ss rSss I'd ss
vous Limitation b the terms Of the charter 70 single
rsroS S':S sssos w y
Thirty third street. and Harlem. Below that point
probably supposed that tho public could be advsn-
sageeusy served BY stages and other conveyances By
tations extend this further south doubtless with
portion OF the city In lS40 permission was given to ex
tend In the other the northery direction In 1Sl6, BY
the act q May Of that year this power was conferred
In more distinct and ample terms 70 continue their road
to point on the Hudson river, opposite Albany But il
was probably never imagined by those Interested in
with authority to establish parallel lines OF railroad
over the intervening territory between Now York and
Albany. Nor = u in my opinion Just construction Of
sion at the southern terminus further than required by
the plain terms or obvious meaning Of the language en-
poyed may extend through such other streets as the
Common Council may Designate but only through such
other streets as may subserve the leading object Of the
extension, 70 w.t. continuation Of the road To moro
think further that reasonable Interpretation Of tho
act requires that the extension should be made from the
terminus OF the road already constructed TO be
legitimate continuation and pr0longation thereof was
to go further-not 70 return back. II was 70 be con-
tinued not to branch off, II 70 be single route not
several routes. 1t was TO be an extension, and not
branch.
therefore conclude that the permission ATTEMPTED to be
granted by the ordinance OF the 2lst April not
warranted by the terms or fair Interpretation OF
dispose Of the main question n the case and makes
consider such Of the other questions
presented relate to the supposed repeal Of act by
the passage Of other acts inconsistent herewith.
There additional ground on which the defendants
rest tho proceedings in this case and
that independent OF any statutory grant
thority the permission granted by the Common Council
to the New York and Harlem Railroad Company is main
ainabe lawful exercise OF power granted to the Com
Council under the ancient Dongan and Montgomery
charters But TO this view Of the think there
l. The permission granted to the railroad company was
the terms thereof confessedy based upon the auhor
y conferred Sy the anne amended charter Of lssS pro-
that all the parties acted and there s some reason for
saying that TO that the parties should be limited.
q But whether so or not 1t Is no longer debatable
question, at least In this tribunal.
l. That the Legislature have, Notwithstanding these
the right 70 make grants Of railroad privileges
and that when this power s exercised It superior TO
and exclusive Of any power which previously resided in
2 That the local government has right to grant rail-
road privileges establish railroads In cities independent
OF legislative action and apprCva sS. arou,a ~ n.
think II s also settled upon authority that all public
and highways are for the use OF the people Of tho
whole State whether located in town country that the
interest in such the ownership thereof Is puii
ju that Appropriation OF such streets 70 private or
Sueut Obstruction Of them, and impsdimosss to travel
occssioned thereby, constitute nuisance ana JUSTIFY an
and that the sog o. the are the
Hence, in this case, the action is well brought their
behalf.
lion to the grant OF an injunction, even II the
otner plaintiffs were improperly :. joined.
y Is ss action Ss ss @
we're proceeding lawfully under valid grants they may
sustain serious damages By the acts Of the
There are one or two other objections peculiar to one Of
'dS Which S'is Il Is necessary 70 consdsrM @ - -' = w
l. Il Is said that this defendant cannot be prosecuted
civil action otherwise than in the First Judicial dis
1oi q Ss suit INJUNCTION 6 Il a:ss.:ss Or
That on the PLANTING own showing there is no cause
Of action and no ground for an injunction against such
win examine these questions briefly
s. as sS: q nS ns1 OF APRIL seG
iical district the Court Of Common Pleas the Supe
ior Court OF the oity Of New York shall have exclusive
Jurisdiction Of all actions or special proceedings wherein
Inc Mayor Aldermen and Commoualty thereof are made
party deiendmt"
could have been Intended 70 locate all actions in the
,ity OF New York. In which, Whatever might be the cause
action or wherever situated however the
parties might be, the Corporation Of the city made
me Of the defendants. such the intention the law
ought to be speedily repealed. II is susceptible of
babe ntepon OF the Legislature, and think 1t should
receive such Interpretation. may read that In actions
s s ss, an ss 'ss hs
he sole tribunals to try causes In which the Corporation
g impleaded Even this Is more liberal construction
han was, think, intended BY the Legislature.
think the object OF the Legislature was 10 limit the
to the specified tribunals in where the
lion was TO recover claim against the Corporation This
Is q reasonable inference from the phraseoogy OF the
second section and das snGSd give that S M
instance which not necessary to do for reasons TO be
presently given.
q Nor Is it necessary to pass denitvey upon the ques
ton whether or action stated the complaint
against the Corporation, whether it is necessary
proper party the suit Notwithstanding the case refer
10 the defendants points decided in the First
district. am inclined 10 think the Mayor, Aldermen and
OF New York were proper parties to the
lion, inasmuch the object Of the action not only
obtain the injunction, but 10 anuu declare void the
dnance in maintaining which this defendant may claim
Ano apparently uas an importan pecunlary interest 10
The extent OF ten per cont OF the gross receipts from
travel below Union square doubtless expected 10 reach
very largo amount.
8. But upon the facts stated In the complaint do not
any cause for injunction against the corporation
There allegation whatever, that they about TO
do or that they threaten any act whatever obsrcng
the streets otherwise execution Of the
permission granted Is it alleged, does IL appear
that the railroad company, in executing the ordinance
are the agents OF the corporation but Is rather TO be
Inferred that they are Independent contracting parties
For these reasons OF opinion that the motion for
M Injunction against the Mayor Aldermen and Common
Atty or the city OF New York should be denied and the
injunction dissolved, with ten dollars costs
But as against the other defendant-the New York and
Harlem Railroad Company-that the motion for in
junction should be granted and the temporary Injunction
dollars costs Of making and opposing the
application 70 ABIDE tho event Of the action. .
NEWS FROM mi EAilfY.
~~~(~~O>~~~~~c~~~~~.
Our Martini nsbur9 Correspondence.