New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1876-08-16
A RAPID TRANSIT VICTORY.
ONE OF THE SURFACE ROAD SUITS DIS
MISSED.

THE NEw-YoRK ELEVATED RAILROAD, AND Dis
MISSES THE COMPLAINT THE RIGHTS OF THE
TWO COMPANIES CONSIDERED IN DETAIL.
Judge Van Hoesen, in the Special Term OF
fhe Court OF Common Pleas has given his decision IN the
suit brought by the Ninth Avenue thorse Railroad Com
pauy against the New-YCrk Elevated Railroad Company,
denying the right OF the plaintiffs TO bring the action and
therefore dsmissng the complaint. The purpose OF the
action was 10 compel the Rapid Transit Company TO
abandon entirely all travel on their road above Ihhte-
Ct, to forbid them from making any extension OF ue
road and remand them in their work below Ihlrtict
st. to the system of endless chains, run by stationary en-
gines which found mpTacucable as carry as 1871
after full experiments.
In his opinion Judge Van Hoesen, without commenting
on the decision of the General Term OF the Common
Pleas SAYS merely that lie is bound by to declare the
whole line Of the Greenwich Street Road, except that
part built before April %, 1s73-the part below Thir-
tehs-a public nuisance, but no one except inc Ator
neveueIal can sue TO prevent it, who is not
specially and privately injured. The Ninth Avenue
Railroad Company not injured, and therefore have
no right Of suit. He decides that the company are
authorized dummy engines where their road itself
Isl lawful.
This is the only injunction suit to forbid generally
the extension Of The New-York Elevated Railway Mr.
spadcrs suit only orbs the extension of the road over
the Battery on special grounds John Patterns suit only
forbds the completion of turnout IN 'front.' oil HIS prop
erty and in the fourth suit while is as broad IN ITS
as the Nlhtn SUIT, II" S0iiOA"'
has been granted.
The is the substance of Judge Van HOesens
opinion:
After stating the object the action TO be to eon the
defendants from using the dummy engines or building
any switches or turnout south Of Thirtietst and from
maintaining operating road north OF IhirtethSt
Judge Van Hoesen points that the right to operate
the present road without switches turnout below
Thirtieh-st and by endless chain, is conceded Inc
portion north of Thirtiehs built after April D.
1873 and the General Term has decided that IL was
built without authority He was bound therefore, to
declare that part of the road a common nuisance But
as 1t il public nuisance private person can maintain
an action for suppression without showing particular
injury beyond that suffered the rest OF the public and
that injury is direct, not consequential OF SUD
santia nature, and not ecns or evanescent 1t not
at all essential that the plaintiff should be the only party
Injured The number of those injured may be large but
the injury they sustain must be different in kind from
that inflicted upon the rest of the public.
Judge Van Hoesen then up the special complaints
OF the Ninth Avenue Railroad Company 1rst that
the Elevated Road yGdes its exclusive franchise taxing
the fares of passengers who otherwise would travel on
the morse railroad second that the columns above Thr
tetls and those in the roadway below TEirtc;hst III
terfere with ingress TO and egress from the panHs
cars third, that the Of dummy engines iHghtens
and INJURIES horses fourth, that the obstacles arising 10
travel on the plaintiffs road caused by the Use OF steam
and by the erection Of columns and tracks IN ana over
the roadway arc SO great that il is to be apprchended
that unless they are removed franchise OF the PLAN
tiff will become vaueesS
On these points Judge Van Hoesen decides that the first
specification Of special damage is not supported by the
facts 1t was shown that passengers had Travelled
by the Elevated Railway who otherwise would have paid
fare to the plaintiffs. II is wholly matter of conec-
ture which OF the horse railroads the passengers Wouu
travel on if the EleYatcd Railroad were absent Bat
Judge Hoescn docs not assent to the doctrine th'
the franchise OF the Ninth Avenue Railroad Company Is
tl,a apt ffiVi u
thoity 10 operate it's road tends TO supper the cnim TO
an exclusive franchise Section IS of Article Of the
amendments to the Constitution docs not protect the
company any exclusive right 1t requires the conseh
local authorities and the consent OF tne owners o
half the property along which the road Is 10 run; olt
sucb consent bc given,So the permission Of the SUI
prce Court in lieu the consent of propcrtyowncls
being obtained there nothing to prevent the consrc
tion of as many railroads III Nntlrave az the Legli
ture may see fit to authorize. Tnc plaintiffs franchise is
not exclusive and therefore interference with ls
profits even though without authority OF law VIII not
he stoned by Injunction. The loss Of fare does not en-
title the plaintiff either TO injunction or to damages
As 10 the second specification OF damage, Judge van
IocSen holds that there is not particle OF evidence 10
sustain the allegation that of the Elevated
Road obstruct slightest degree access 10 Ito PLAIN
tif7s cars Not a single instance proved in which
passenger an emplOye horse Or ear OF the Fla tl
ever received the least injury from the defendants col
unns II was shown these columns were 50 placed
that il improbable that they would present
any obstacle any passenger inper either the prop
ery of the plaintiffs tue persons OF their servants
On the third specification, Judge Van Hoestn reviews
,be mass of evidence presented the trial The use
of dummy engines on the elevated railway was begun
on April 30 1871 in July, 1873, cars were run 10
Thirv.fourth-st In November, 1875, 10 Fortysecond
ST. and in January 1876, to Fhty-nnthst Inc fght 10
use dummy engines was claimed by the defendants at
6-st undcr an act OF 1865, decided by tho
court and now conceded by defendants counsel to
~ unconstitutional 1t now claimed that the right
n use dummy engines is conferred by the act
OF 1873 If this does in fact authorize the deled
ants 20 dummy engines Is not 10 inc poWero i 'ne
Court TO eon such use OF the road south OF Thrtieth
St. for below Thirtehst the road IL ndlapuaDy law
m structure The greater number Of the inurea SHOWN
70 have been caused by the operation Of the dummy
engines have taken place in that very quarter Of the city
in which IL the act O. 1875 be constitutional, the Court
cannot prohibit their II the employment OF dummy
engines pc authorized by the Legislature, no gant Is
entitled 70 an Injunction because they figlten horses
THE defendants might lawfully frishen horses below
T;vtc.lst though The cause OF tbs fright operating
north Of Thrtictb-stmght give the plaintiffs right TO
sp Injunction An Injunction prohibiting tire use OF LOCO
motives on the northern portion Of the defendants line
while they were In constant the principal part OF
tic route would be OF little advantage TO the plaintiffs
judge Van Hoesen says;
mo evidence concerning the effect OF the dummies
mon horses M y be summed ~ bicHY Horses VIE.
rt tryon near TO the Elevated Railroad eNnIb sSs OF
nervousness end ALARM SnEc ntNC" cN"rNcltc W
f. but horses rs rule, aCT Icing daV or TWO III .o
r,Qhbnrhood OF road, stand without tying uGcf 'hc
the trans speed on uNcihcIl ActldehtS 49,
tc @lcnluts 10 remove some " the iupcrlcc
tinus ju the dummy which were naely 10 excite alarm III
i,a,ntff, were prime paiy OF accidents tn1t occurred
long aaJ There De Mlc dou3t upOh inc cNlucnTre
mai nj INC tp,cut time the disturbance TO TIE plinuns
baIS so cht as 10 be almost inappreCiablc. Indeed
tnc plaintiffs evidence consstC! ID PM U, ,i0 49,