The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-06-10
pnarp Legal Fusillade Against the Gil
bert Elevated Railroad.
THE SIXTH AVENUE RAILROAD INJUNCTION.
Grounds for Making the Injunction
Permanent.
HENRY WEIRD BEECHERY DENTISTRY BILL


An exception was shown, however, yesterday
IN the argument the injunction proceedings brought
BY the sixth Avenue Railroad Company against the
Gilbert Elevated Railroad Company restrain the lat
from building its road the tracks OF the former
road between West Third and Fiity-n ninth streets
The argument order to show cause why the
temporary injunction grained against the Gilber.
Elevated Railroad Company should not be made
permanent. large crowd was present in
the Superior Court General Term, room, where
the argument took place The iact that
William NJ. Evarts opcn the argument behalf
Of the Sixth Avenue Railroad Company had, doubt
something to do with attracting the throng in attend
Rnce while many probably came account OF the In
erest felt in the question OF rapid ransitthe real
question underlying the subject to DO argued The
original argument the case, it will be remembered
commenced before Chief Justice Mcneil who, I'M
fortunately, taken III before It's conclusion and
Ihere being prospect Of his being unable 10 resume
his judicial duties for some time 10 como
II determined TO commence de novo before Judge
Sedgwck AS on the previous OCCASION, there was
large and distinguished array OF counsel present on
both Sides the SIKH Avenue Railroad Company being
represented by Messrs. william N. Evarls, Joseph H.
Choate. George y. Comstock and Charles A. Butler,
Ind the Gilbert Elevated Railroad Company by Mcssrs
lanes G. Carter. John K Porter. G. T. Lowcry, c. r.
stern, H. II. Anderson and AshDel Green Mr. Theron
Butler. tho President Of the Sixth Avenue road and
Mr.. Gilbert. the President of the Elevated road were
present, together with o.ner promi3ent railway
officials Everything, in tact. indicates most earnest
md determined legal STRIFE, and rs the sixth Avenue
Railroad has invoked the IL shows only
thorough conviction OF the justice OF ITS cause but its
Willingness to abide their final arbitration.
AT eleven A. NJ. Mr.. Evarts began his argument AL
though, barring slight inermissIon when the
took recess he spoke for several hours he has rarely
spoken with more impassioned earnestness.
he began by calling attention 10 plaintiffs corporate
rights conferred by the Legislature which he claimed
amounted to freehold in the streets in trust for the
purpose OF horse railroad This was private right,
winch the Legislature could not invade by subsequent
tgslaton. No question can affect The tenure OF
this road. As Tor the convenience OF trains 1t
VAS evident that method oil steam transit
could compete with the horse railroads OF The
cty, which carry during the year almost many pco
Pile the combined railroads OF the United States Tho
defendants supposed that the general OF 1875 gave
them additional powers and privileges which they did
not possess by their original Incorporation But this
true; the defendants were unuinshed with
the protection OF law 10 do the acts they dittc The
documents disclose all the elements oil distinct
tract between plaintiffs aud the city, and Of legislative
protection oil private ndv invasion by the
Legislature any other authority IN the state. On the
faith OF all this millions expended by plaintiffs
The various street railroads are accomplishing work
Of vast magnitude iu the conveyance passengers in
manner compatible with the use Of the abutng lots Tor
purposes oil business. The Sixth Avenue road alone
conveys 600 OF passengers yearly and the Third
Avenue nearly twice AS many
Mr. Evarts next referred TO the provisions Of the act
Of 1872 giving authority To run the Gilbert Elevated
road and pointed out that there a distinct pro-
vision that lit should interfere with ex sting rights
Of traffic or rave;' that the arches should be sixty
icct curb curb, and that II to be tubular
way on the plan TX uown as Gilbert,s' For no other
KIND OF road he claimed, was authority given. lilo
then went TO say tnat, from the fact that the tubu
lar covered road would obv:ate the inconvenience OF
the passengers gazing INTO the windows Of the houses
along the route and from the fact that the Scientific
OF April 49, 1872 published picture 9Th
bert's proposed City Elevated Railway the ciii-
xens what like and the legislators TO look
into, and that the bill was introduced March IL and
was passed June H. was manifest that no other kind
was authorized The road so authorized Is de-
scrbed by the scientific paper one formed OF air
.rht cylinders, through which the wculd be
noiscrssly. The point insisted upon the
violation by the act Of 1875 vi the constitutional
nfnendnent forbdding SPECIAL legislation Tor strcet
railways. He further argued that the motive power
the OF the construction OF the proposed road
wholly different from that allowed by the act OF
1872 The act OF 1873 giving authority Tor this Change
was despotic iegisatioh aud, u II was valid then ITS
ike that OF the car oil Juegernaut The run
ning that road would utterly destroy that
place oi residence and Tor stores, and the i'm
mcnse aud growing traffic, built up on the faith OF the
pcrmancnce OF the avenue highway, would be de-
troycd. In that avenue, OF sixty feet from curb 10
rurb 1t WAS intended 10 plant upright posts. twenty
Two cet apart one way ana thirty live feet the Other
dividing the street into three lanes. Ol
everybody in favor OF rapid transit 10 seat your
sell III carriage, wish yourself in Mecca elsewhere,
aud be there. that was the rapid transit oil the nlana
ton and newspaper discusslcns. But the nexorabic
requirements OF RAPID transit III a crowded city
lc taken INTO account. To transfer $4,000 600 or
io,oooooO passengers year would require very
frequent trans very frequent stoppages and
powerful engines, so 10 BIO able 10
tiian rapid speed at sudden start and making
sudden sioppagc The Greenwich street line has beeu
operation for years, and transfers only about 1000
passengers u day, while the Sixth Avenue Railroad
the requirements OF rapid transit met by pro-
posed structure, which was very different from tho
secluded underground railroad; that heavy wagons
ana trucks would be impedcd and that
6rc engine wishing the street would
have to 60 around by the Battery. They
would dcsoIate the city in order 10 make it conve-
nient for It's inhabitants; make IL unsuitable In order
10 make IL accessible. Such the monstrous con-
trvance by which public necessities and demands were
sought to be made the means, not OF pubic vcni-
fnce but Of private speculation. That would answer TO
sell stock and issue bonds upon they would leave the
enjoyment OF II and the burdens ito whom It may
concern" Unless some power beyond the natural
right oi the had authorized this Intrusion
every citizen had the right 10 rample aud destroy
1t, even without judicial aid hr. Evarts then re-
viewed the law upon the subject, and contendcd
that, as i provided Tor building the Gilbert road
without tho consent Of The abutiing owners or The
Supreme Court, VOID, having been passed after
the constil utonsl amendment took effect and It's
face IL was ional because provided for
special charters. Tho Legislature could not dcvove
upon others legislative powers But the constitutional
provision preventing me LEGISLATURE from giving
was sought be avoided by conierring upon
i've commissioners The right q cay that
railroad may be built at particular place and
III u specified time with specific capital. What
was this but to indirectly enact special charter? In
constitution was very lung IL
IL adm III cd the same freedom though there
such thing. The UNFOLDING OF such a law would be
violation OF oaths everywhere aud Of common sense
aud common Justice, to get I'd oil the CONSTITUTIONS
Another general constitutional objection was that the
violated the contract made between the city aud tho
Sixth Avenue Railroad Company. but suppose The
act he ur In convIusion may be IN some respects
valid, IL viii deprsc.ate property on ska avenue
10 the extent OF s5o.vvo,vo0 Ana lne ACT
prohiots the crossing OF Broadway below tiis,niuth
street, while This route crosses broadway twice ON
this corporation was conferred rights by an unnlaced
aud unfecorded leg power hat ransccnded Ill
the powers OF the Legislature iiscsL When MI Evarts
sat down he appeared apparently fresh when he
began. Throughout his prolonged Argument he was
listened 10 with the most profound attention.
Mr. Choatc submitted documentary proofs on
The part Of the PLAINTIFF alter which the Court was adj
)ourned until Monday. Al the close the audicnee
crowded around the table to examine miniature sixth
Avenue Railroad with two cars; lamps aud tcic-
graph posts each side also represented aud
model Of the proposed Elevated road just over the
horse car tracks On side were models oi HE
horses and sidewalk foot passengers, How he
roads would look after Tho completion of the proposed
Elevated road was thus must ngcniously SHOWN.