The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-13
THE COURTS.
The Fight to Extend the Elevated Rail-
road Across the Battery.
LIABILITY FOR bonds PLEDGED As SECURITY.
A New Indictment Against Charles
A. Lawrence.
NOVEL TERMINATION TO A ISLANDER SUIT.

An argument OF considerable length was heard yes
terday before Chief Justice Mcneil, OF the Superior
Court on continue the injunction against
HE new elevated railroad ut the suit OF Jeremiah "
spadcr The company. will be remembered, were
temporarily restrained by Judge speir from erecting
heir road Battery opposite plaintiffs prem
ses No. Bridge street Mr.. Spader who claims ttlo
through conveyance by the city Edmund Smith
June 10 1915 guaranteeing that neither the Bat
terry Bowling should ever be appropriated for
private The whole question is to the construc
ZION OF this covenant deed. Messrs John E. Parsons
and Wheeler H. Pcckham appeared on behalf of Mr.
6pader and ex-Judge Emott and Edward G. Delevan
represented the railroad company.
Mr. Parsons, who opened tho argument, after re-
sitting tho covenants in the decd stated that the de-
cndants that thcy succeeded the rights
bid West Side and Yonkers Railroad, which had its
charter in 1857. He then say that the pro-
posed road traced that part OF tho Battery
originally lying between high and low water mark,
which, prior to March is, 1890, composed what
known Fort George, the title OF which the Corpora
ton held for erecting thereon dcences and public
buildings, and by thor title they prohibited from
disposing OF these lands for any other purpose what
The plaintiff holds title from the Corporation,
and has paid higher price for 1t account OF the
clause referred to. Tie building Of that road would
spoil the park and deprecate plaintiffs property. flo
further coniended that the charter of tho old
West Side Railroad allowed the extension OF tho
limo TO the foot of Greenwich street, and that
they bad power to connect with South ferry.
With regard TO tho license from the Park
Commissioners Mr.. Parsons argued that those
officials had authority control the parks for other
than park uses save through the Commissioners of
g,nEt, I'm has fharitx of fha Cop r;cci,r
was he insisted, limited and they have right TO
make any dispost on OF the parks by sale ythng
short OF sale He urged, further, that the of the
Battery the purpose OF having railroad run across
II is a violation OF the trust upon which the
acquired by the city from the people of the State of
New York under and by virtue of act passed Sep.
TENDER 49, $780, and Of the covenants contained the
deed from tho city TO Edmund smith OF the premises
OF which he Is now seized; that the building OF this
railroad would greatly dcprecate the value OF tho
plaintiffs properly and viii prevent full and reo
oil the Battery as private park
Judge Emoit on behalf OF the defendants, handed in
verified statement of the proceedings before the Park
Commissioners, which resulted the granting OF the
license and copies OF various opinions and statutes;
also an affidavit OF James A. Cowan secretary OF the
company, proving title to all the privileges Of the
lengthy argument IN reply TO Mr. Parsons. The rail-
road company he said claimed the right build tho
road across the edge OF the Battery under license
with remarkable authority granted In the name OF the
Mayor, Aldermen and Commonaty OF the city OF New
York. and executed by the Department of Pubic Parks
which department he claimed Is vested with all tho
power and authority heretofore possessed, IN relation
Aldermen Common
atty of city OF New York, and any all branches
of the municipal government The plaintiff asserts
right to complain of tho exercise of this authority in
this and TO stay its exercise apparently on the
grounds that the PERMISSION given by the city Tor
this OF the Battery breach Of covenant the
deed by which the city conveyed TO Smith, the plain
tits predecessor June 1915. and that 1t is viola
OF trust created by act OF the Legislature
passed 1920, purpor,ing release tho city Tho
scribed in the act No possible right Of
ha mad ptf, nd Ho 10 raci-
dent of Brooklyn. His property used and occupied
for storage purposes Neither nor any property
pose take to touch his property. 1t docs not
within sos feet OF IT. His property situated
and TO the railroad track His properly does not front
on the railroad so as even 10 be affected by It's con-
sruction Nor does II front on the Battery, SO
be Affected by any OF that pace park. He
must therefore show that he is entitled to the exercise
OF the equitable power OF the court and to njunc
ton this deliberate act OF the public authorities
either because IL Is breach OF a covenant with him,
because II Is breach OF trust OF which he can
complain. The action OF the Department OF Public
Parks deliberate and well considered Public
discussion invited and arguments made by tho
learned counsel who now asks Tor this Injunction and
others Reports made by n committee OF she
Park Commissioners and by the Landscape Archi-
tect The opinion OF the Corporation Counsel
TAKEN after he informed OF the presented
opposition the request OF the company, and the
gran, was finally made IN the form OF a license,
workable AT any time. with hs advice and approval as
TO and contents lie insisted further that the
license authority given by tho city 10 the defendant
therefore appropriation OF the Battery
private use that action, for damages will lilo
or a breach OF thcs covenant IN the deed TO Edmund
smith, aud tha, as the Battery Is applied 10 public
uses, the precise nature or character OF such
Is In the discretion OF the city authorities He claimed
point the title OF the city the portion
OF the present Battery which the structure To
be built is derived from tn, State under
the act OF 1890, bet either from the British
Crown under the Dongan and Montgomerie charters,
from the State under the act of 1921. consid-
Fred in the Phenx case some OF tho Judges held
Ia that case, from the act of Congress Of ls22 and the
Enrrn or nd hat hp mari Mt hA
present Battery in question wholly below high
Ter mark in 1900; that part OF Il below low
mark and that 1t not at that timc part Of the Bat
lery either part OF the wholly under
al all times But aside from this answer this
part the suit the titles OF the defendants all the
franchises they are exercising everywhere Is compete
without invoking any acts or parts OF acts which
DC iauited as unconstitutional and as to this connec
ton with tue South terry, their rights are wholly in
dependent Of the statutes referred 10 in this compliant
As to the claim that this Injunction should be granted
TO the plaintiff because the pursued by the de-
Pendants varied IRON that indicated by tho
Rapid Transit Commissioners he urged that
4 tho people OF me STATE o. New
complaint OF this variation II does not con-
plaintiff; that there no variatiou that tho
route aid down by the Commissioners along the
the Battery that the present structure Is built
from five twenty, thirty, aud IN pace 100 icet
IRON mathematical line, which Is the outer limit OF
the Battery that It is placed where the Park Commits
Eoncrs avd their architect believe best for II to
go that u is where II viii be less OF an obstruction
and blcmsh than II IL skirtcd the Battery along the
sidewalk that the courts viii not at the complaint OF
mere outsider, 20 into question OF discretion lkc
this or reduce The ledge OF the battery TO mathc-
maca inc and that independent OF all this, the de-
PENDANTS have good RICH, and title the OF this
territory, from the consent and license oil the city,
without rcsorting 10 the powers OF the Rapid
Transit Commissioners Following tho close OF the
argument Judge Mcneil took the papers
PLEDGED BONDS.
On the failure OF Henry ccws 4 Co. In this city
and Cicws, Habicht s Co, or London. Henry Hen
ncouin Go o. France had 600 Of Tocfto peorta