The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-04-30
FIGHTING RAPID TRANSIT.


subject Of tho latest court injunction. This last
injunction, however, although only temporary ono,
will doubtless occupy the attention of the courts for
time before the final settlement OF tho question
to Its dissolution or making it permanent The basis
OF the Injunction was an application made yesterday
before Judge Spe In Superior Court, Special Term, by
Mr. John T. Parsons on behalf OF jeremiah Y. spader
TO restrain the railroad company IN the construction Of
the road across the Battery his property The in
junction is claimed on the ground that it has been de-
cded the property owners entitled to have the Bat
terry Park forever kept open, and that they
entitled TO easement In it to that
tent Messrs Holcomb and Tracy, representing
the railroad company, asked for adjournment until
Tuesday, when the senior counsel Judge Emott could
be present. They represented that 1t was not an or
binary question Of tltle the plaintiff, whose premises
are at No Bridge street. having more claim to OBJ
sruct tho work than any other citizen his place being
800 yards distant. The company claim that tho ALSO
lutte property OF the park was vested in the city and
tho company have the right of way across it
vested in them BY the city. After some argument a
temporary injunction granted until Tuesday, the de-
fcndant to be allowed meantime, to Ill up any holes al
ready cxcavated in tho Battery with mortar, up TO
tar necessary to prepare the bases for tho up
rights and to nish the setting Of any column already
In place.
EXECUTORS RIGHTS AS LEGATEE.
In the matter OF the probate of the last will and
testament of Amos NJ Dennis deceased an important
question Of law arose. The probate of tho will was
suspended tho executor, Mr. Crosby being offered
witness in fu therance OF the probate on the OBJ
lection OF the slant that he was cgatee in the
viii, and because he was the executor named therein
The proceedings in the pend ng before the
late Surrogate this point notwithstanding the cx
ecutor Crosby had executed and delivered release of
all his interests in the estate This question came up
before Surrogate Calvin, who yesterday rendered his
decision thereon. He rules that evidence support
the execution Of the WILL other than that given by
the subscribing witnesses may be presented though the
subscribing neither dead resident nor
insane Therefore the mere fact oil Mr.. Crosby being
an executor does exclude HIM q witncss Again
to the objection that Mr. Crosby ega,ce under
the Will for performed by him taking care of
and selling the estate addition to his as exccu-
tor of the wilconstitutIng him. alleged an inter-
estcd party in the probate OF the WILL to exclude
him witness to any communications transac-
tons with the testaor under the statu;e--I am OF
opinion that no has not such beneficial interest rs
should exclude him II he has net executed the release
while the release would obyatc the objection In con-
sldering the question as though the given tho
executor clearly beques and though release
had been executed, the mere fact Of bequest,
IN the opinion OF the Surrogate, does not constitute
bequcst to entire stranger, or who was
absent miles away, makes HIM unconscious trans
actor with the testalor. Nor does the s.communlca-
tom by the cstator with the subscribing witnesses,
in the presence and hearing OF third party, constitute
communications" between the witness and the de-
ceased Under the authorities quoted by him the Sur
rogate held that Mr. Crosby, though executor ana cg
tee. admissible witness prove tho will The
Court in conclusion, says:--This Is new question
which Will frequently arise In this Court and should be
settled Tor the guidance OF the suffers therein.