The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-09
THE COURTS.
The New York Elevated Railway
Injunction.
Justice Days Opinion Reviewed by the
General Term.
The EFFORTS TO SAVE RUBENsTEIN.

Railroad Company to prevent the construction Of a
turnout In front OF his hotel In the progress Of ITS
hurried but acrimonious litigation has reached tho
General Term. How riot seemed imminent on ac-
count Of the persistent prosecution by tho railroad CON-
pany OF its work in digging tho foundation Tor its pillars
In front Of the hotel and interfering with Mr. Patterns
vault; how temporary injunction was granted BY
Judge Van Brunt against the railroad company, re-
straining n from continuing Its obnoxious work; how
Chief Justice DAILY has made this injunction perma-
ncnt; how an appeal taken from Judge Days
decsional these facts have been given in the HERALD
II on the appeal referred that the up
for Argument yesterday before tho General Term,
Judges Robinson and Van Brunt being ON The bench.
General Roger A. Pryor appeared for Mr. Pat,en, and
sx-Judge Emmot for the railroad company. Ex-Judgc
Enmo,, who opened tho argument insisted that tho
tislo Of the plaintiff does extend TO tho middle
the street, include tho land within tho limits OF the
street; that the plaintiffs deed plainly excludes tho
street, and thnt whatever may have been the title Of
tho plaintiffs grantors. the plaintiffs boundary, us
given by his deed Is the west side OF the and not
the street ITSELF or its middle thread or line
Ho next took up tho question OF tho title
OF tho defendants to their franchises. BY
ACT passed April e. 1867 this company author
tied to build aud operate elevated raroad with
motor since dsusod, for distance as an ex-
pertinent Commissioners provided by the act
Who werc among other things, to examine this expert
mental structure, and If they thought proper TO
tiy 70 Upon obtaining this certificate this
company authorized to build this kind of u road
along Greenwich street and Ninth avenue to Harlem
RIVER The experimental section was accordingly
built, and the commissioners certified In favor OF II
July 2 1857. Thcrcapon the company continued the
construction Of the road to Twenty street. This
Is the present structure only the plan OF motive power
having been changed in manner hereafter shown,
was passed with reference to this company The only
part Of this act to which no deemed IL necessary
TO refer was clause authorizing the change oil tho
name OF the company from West Side and Yonkers
Railway Company TO West Side Elevated Railway Com
panv In July, 1868, the West Side and YonKers Rail
way Company filed certificate, authorized by It's
stockholders and officers changing It's name to the
West Side Elevated tPatented) Railway Company of
New York City, and aftcrward did business under
OF August, 1865, under the name Of tho West
Side Elevated Railway Company Of New York.
u executed mortgage OF It's road, property and
franchises 10 trustees to secure bonds which IL issued
This mortgage alerward foreCloscd the request
OF the bondho|dcrs by suit in the Superior Court OF
this city Judgment OF foreclosure and sale was OBJ
tanned September 4 1871, and on tho 5th Of October
1871 the property road rolling stock and franchises
the company sold under this judgment to James
acting under the Of the West Side Elevated Rail-
way Company, made second mortgage Of its road,
property and franchises to James A. Cowing. On the
k7th OF October 1871 the New York Elevated Railway
Company, the present defendants duly organized
under the General Railroad law. Tho second mortgage
to Cowng was iorcclosed by suit iu this court; tho
road property and franchises OF the former company
were sold under that judgment Oh the 9th OF December
1871, purchased by the present defendants and
December 7, 1871. On the I'd OF January, 1872,
Cowing, the purchaser at the sale upon
she foreclosure OF the first mortgage, conveyed
10 the defendants all The road property and franchises
20 purchased by him. TINS II claimed, makes a
perfect deduction and chain Of tito to the franchises
rights and property originally OF the West Side and Yon
Elevated Railroad Company The mortgage by that
company valid lie insisted furtner that by virtue
OF the title to these franchises tho were
ting legally constructing the turnout IN question: He
up the question The OF
she acts under winch the franchises held, and
urged in conclusion that the order continuing the in
Junction and should be reversed In reply
General Pryor made equally lengthy argument. He
claimed that Mr. Patten was owner IN fee Of the land
IN the street, and such entitled TO the Injunction
that he tho soil OF the street usqre ad medium
dlum vir, subject only to the Of public way
that the OF street for a railroad additional
burden beyond the public easement, which cannot bc
imposed by any power without compensation 10 the
owner OF the fec; that actual payment or statutory
provision Tor compensation was condition precedent
10 appellants right to take enter upon respondents
soil the street; that respondents property
uudcr the street; that they have peen in
the actual pos session and occupancy Of piasntif,
under clam of ownership, for more than twenty
years and In the adverse, exclusive and continuous
possession OF himself and for than sixty
years that constitutes conclusive evidence OF
epondents right maintain tho vaults and that from
this conceded Of facts that the soil in the street,
respondents property has been invaded subvcrted
and his vaults broken penetrated and occupied by ap-
peant in the construction OF permanent railway 10
be built and operated respondents land and all
without consent compensation, Ii results that he
presents clear Tor inJunctivc relief He insists,
further that the constructing aud operating railroad
In q street without competent authority public
nuisance; that only tho LEGISLATURE authorize tho
construction OF a railroad In the street. Ho next con
sidcred tho act Of 1867, which, he claimed, was
imperative to authorize the construction OF the
turnout He insisted that this act s
In that being private and local BILL II embraces
era subjects, ono of which, the construction OF per-
manent railroad, including this turnout is not ex-
pressed In its title; II valid the purports only
authorize construction to he completed within live
years from the I'D OF April 1867 and does pretend
TO authorize the structure here threatened turnout
Tor the use OF railway carriages propelled by
that the Of 1868 Intellectual to authorize the con-
rrucon controversy; that IL is demonstrations in
thnt being private and local BILL either II embraces
two SUBJECTS both Of which expressed In the tle
and the whole act is void Cooley on Const. Linn
lIs or else embracing several subjects, its title con-
veys lntimat,on Of the authority IN question
RAILWAY after the lapse Of the original lma
tion that II valid the act purports only authorize
the construction Of railway before the 22d OF October
1879 aud gives authority to erect tins turnout IN
1876 that the act OF 1875 equally nugatory for appel
lants purpose being papaby repugnant sections
and u.s. article OF tho constitution OF the State aud
that being public nuisance, and productive Of par
SECULAR and peculiar injury TO respondent no has a
right TO interiict construction Of the turnout
At the close OF the argument the Court took the
papers, reserving its decision.