The New York herald., 1876-10-31

70 conoemn certain property required the road and
appraise tho vaue OF The property required
Is sinking of foundations about four feet square
and Ave ect Deep sustain the columns intended to
support tho road and situated at south Ffth ave-
nue.. between West Third street and Amity lana OPP
position is made by the owners the same general
grounds as raised in the suit OF the Sixth Avenue
Railroad Company against tho same road, recently
tried before Judge sedgwick. who decided against
the right construct the proposed elevated road.
Mr. William NJ Evarts Tor the property owners urged
that tho Gilbert Elevated Railroad Company had
changed tho structure and mode OF operation author
ized by tho Legislature and, instead OF using atmos
pheric pressure they steam engines, and, instead
OF arches supporting the railway spanning the
road from curb TO curb fifty feet apart they pro-
pose girders upright posts. not dfy feet apart
thai the land in question would be required under
the Rapid Transit act of 1875 giving TO existing cor
porations "a like power as corporation specially
case tho OF majority OF the owners should
have been obtained and without u the railroad CON-
pany were acting illegally.
ExJudge Porter in reply argued that the service OF
the Injunction days before tho tion OF tho
time, and the execution and delivery oil CON-
pany's bond effected an extension OF that time six
months IRON the expiration OF the stay The provis-
tons describing tho character Of the road TO be out
ordinary exercise OF the police power OF tho
Stale respecting the control aud occupation OF public
and private property, and not limitation in
lore the constitutional amendment required Tor IT'S
enforcement no consent by properly ownerh Inc
In tho Gilbert charter the Commissioners plans
under the Rapid Transit act related only TO mechanical
and engineering details. They madc no essential
variation upon the described in the Gilbert
charter but left II still elevated iron railroad, capable
OF being operated upon lbcrs plan ofcomblning steam
locomotive service Tor passengers and freight Win
pneumatic service for small parcels The recurring Of
these notifications only another exercise OF the
police power aud neither created new corpora
any right OF the contemplated by the con-
stitution Tho torn s'ike power" II was claimed.
evidently term OF measurement or comparison
having the Same significance the words "simar or
equal power, and was intended 70 cqualizc OLD COM
panes already possessed OF 'power TO build railroads
with new corporation about TO be formed and clothed
with similar power. .Like" powers were like because
OF their similarity powers and pot because Of the
similarity OF conditions with which they were attained.
Precisely .likc" powers might be earned py the per-
iormance OF exactly diverse conditions. The iran
chise having been secured before tho cons,itu-
tionul amendment required for enforcement
consent by the property owners. Tho proposed road
made no essential varston from that described in the
Gilbert charter and still (iilbert's plan OF
elevated worked by steam service for
and freight and pneumatic service Tor small parcels
At the conclusion OF the argument, which occupied
several hours aud mainly going over tho same old
famar ground Of previous arguments in the various
anti-rapid transit suits pending IN tho courts, the
Court took tho papers, reservng its decision.