New-York tribune., 1876-08-28
particulars like Hayes His speech is dark and It all turns
upon this tnat the Democrats i1uSi nave All tnc OiEccs,
| and TO this al the other peinerr.'s agreed
RApID Transit DBLAYED.
THE GILBERT ELEVATED ROAD ENJoINED.

BY THE SIXTH AVENUE EalLBoAD COMFANi-
UNcoSsTnUToyAIITy OF a PART or THE RAPID
TRANSIT ACr--COMMENTs UPON THE DECISION.
judge Sedgyyick of the Superior Court on
Saturday gave somewhat unexpected decision In the
suit by the Sixth Avenue Railroad Company against the
Gilbert Elevated Railroad Company This decision cnjons
the latter company building its road according 10
the plans approved by the Rapid Transit Commission
with pillars in the roadway OF sixtave, II indeeh IL
does not enon it from building any road in that avenue
The original plan OF Dr. Gilbert was for railway 10 DO
snu in and supported by arches spanning the
street from curb to curb, but it was aerward modified
Judge Sedgwick decides matter OF fact that tDe
original charter OF the Gilbert Elevated Railway Com
pany authorized the OF openair railway ana the
use OF The locomotive but did not authorize any ihtr-
sion Oh the roadway Of the street. On the question
whether the plaintiff has any special right OF action the
question upon which Judge Van Hoeson Bonsuted tne
Ninth Avenue Railroad Company in Its suit against the
| EewYork Elevated Railroad Company Judge SedgwicK
decides III favor OF the Sixth Avenue Railroad Company
on the second point Judge Scdswck holds tnat the com
referred not the Rapid Transit Commits
soners hui commissioners, II appointed in the acts
Incorporating companies previous 10 the kappa Iiah-
| sit act
After calling attention to the claim OF the company
that its right 10 construct road not impaired by the
RapidIran.t act hut twas merely subjected by 1t ANY
new limitations the commissioners might impose under
the section OF act he says that as the defend
and operate railway under other acts than the Rapd
Transit act they are bound by the restrictions and !m
atons to mode OF construction slated III those acis
unless first, such restr ctiOns and limitations arenot
| consistent with the provisions OF the Rapid Transit
| act or second unless the restrictions and lim
atons intended by the section are only such as had
been specified by commissioners appontcd under pre-
yus nc is and arc contained In the very body OF the
original acts right view. he says would seem 10 DO
nat this section part OF the act with all other Of It's
provisions, spoke to the commissioners and directed
hcln with all others 10 obey the section and 10 preserve
the restrictions OF former acts As To the route which is
in gar Baieria the ac. gives the existing corporation
new power only when the rouc for the new cor
pOration is the same as that of an OLD corporation.
JUDGE scdwck then takes up The claim Of the defend
company that under the 36h section Of the Rapid
Transit act Il may build s road Jar ms It's specla
route comedies with the route laid down BY The Rapid
Transit Commissioners in the manner prescribed by the
commissioners and In connection with this examines at
endh the provisions OF the constitutional amendments
II 1878 IN relation 10 railroad tracks and says that the
grant must general Jaw IL Il INVALID n II
came from private and not public law" "The 36th
section gives TO the defendant existing corpora
tiOn the following advantage: When the commissioners
have xcd upon route which they think be the best
one Tor corporations 10 I've formed under the act, 1t IS
the same I've Will SAY either In whole or In par as the
route that had been given BIZ the Legislature to an exist
ing corporation the latter shah have the like powoT TO
| construct and operate such railway or railways
| uuon fu!hllment Of the requirements and CON
| oitons imposed by said commissioners as a
| corporation specially formed under this act.
The result Il thai 10 the particular franchise. IL Is
not gcneral In its procrs TO all equal terms IN taat
benefits particular class corporation at the expense
u tie rights Of all others, and The deicriaEPs claim
cannot he supported under the requirement that such
| franchise shall be given hya general law can
not think that would be general law; but on the
other hand think chat The law 1t stands m the thirty
sixth section is H3us the provision that no private Law
shall grant right 20 lay down railway tracks The result
that IL the Rapid Transit act intended to give. IA the
defendants claim, the rcAt u tho siStaye. by pac
ing tracks upoa upright columns in the middle OF the
| street Il Is In that respect unconstitutional"
JUDGE scdswirk Iasses the question OF special
injury 10 the plaintiff holding that the row Of posta on
either lc is Limitation of tae space which the rianiih
has under s charter right 10 use Tor switches turn
oats 6c wnencgcr they required lie declines Ia
pass tire many other questions pr scnted on tho trial
except the question Of h right OF the defendants 10 use
an 1pen-ar rua with ord nary locomotives aud directs
Judgment in favor OF the plaintiff, ero.nBg the Gilbert
Elevated road Ia accordance with tho prayer of the
| COMMENTS UPON TIE DECISION.
! A reuorcr OF TIE TRIBUNE call. la /, evening upon
Charles L. stone VINO the only OF ia" counsel tor
tie Gilbert road In tie city. lie $. ted taf e had just
rinnod ms vacation, and had not read Judge sedg
wiri's occsiou. IIr therefore unprerarcd TO say
s!p .eyi tuat company would not be .lei uncs.
in' v,rs ciT cd up to lts"cr gouri. il' even
line recent q csiun sustained 90 Noui 1nii ~ ms
opinion. affect "a any manner the present structure Ia
~. news oi the decision by Ird &C. srdgwlci adverse
10 Es Gilbert Elevated Railroad Coruuy. aud granting
tlr imc ion asked ,or bY IT, onPonruts 81 ue SIKH
AZ u'e street LaraaC Company, an HJi reached the
oco oi the SoW-i br6 EcN"iCl 1 iroai company (.he
Grcrnwicii-,t. lucD wrcn TRIBUNE rep,rt'r called
! tirrc on am day afternoon. Iuc iuurma.pn LAT
sr dec ~.ou had peru sITon wa' received with some
siruiso, aGl the President Of the comirhy, who Wa
u.t g2put 80 ht "u tc uptown TAIN, remarked L. tue
reporter: " 70 e aAni possibly al - Is, "hd 20 not
bcI-yr 1t VIII materially ihIuit 'e prospects Oi tho
Gpcr, road t.pugD II win rrDducc delay, uui ne"
charter HAY .ayc 70 be oA"in'd.' hi icty ." u PnS
ton as 10 lhe mems 81 the case i. 'l'l' 'l'l' 'iNv
ms; read the deci'ion; in iIct ihs IS me
u. course 10 Is not ios'ic Tor mo 10 tNpr'o dh hi i
| ,ut opinion H. tn matter ] suppose, however, thht
l nan i.rrIiv IN Is correct" The sugeli ieud.H ui
| is road D w. Nyuan t,Ihcd for soue lime witn tue
reporter on t4o dc Ision aud rs probable oi,ct Oh me
| Gilbert ioau, and elevated r1pis IN general. vita
tao President hc was Of tine opinion that II could not
caccA tie tystcA OF rapid transit by means o eie-
yated roads. "fue necessity OF some means b. when
MN m,.., o.rytr ana bceye thai mn rfngis 20
prevent Tue OF Tie pans Oi those ale
cndeay0rug bgIug tnis aboIt VII ~ the cad prove
H.el.s," ig wa, r1nident tlat rapid transit w0ul ~
only a Icw e0mpa.cd WIN the vast travelling pubLc,
ai, onp,sed 10 IT, and tiat winch Is earnestly demanded
bv M piurIfy iuist finally De raniel" IL regard
tie change pau u the Gilbert Esyaird road from The
original IS cn hy which tie tracks %erc sganncd by AN
| mcl and suspended by arches, Mr.. Wyman sad:
1t Is owing to this change of plan, no doubt,
| tIat the iniuuCtiun had been granted, but as
| FAR oDstguct,ug the yiew Is concerned, the
oid Plan tan tAc new" lie also spoke OF The
cUuI..iou, cXpcn& construction wlch the old plan
demanded, ana sgid tBat II was doubtless materially
! diminished by tue present method oi buhdlR. Nuen
ASKED what hls opinion was cOnccrihg the ultimate con
BlruciOu Of Gilbert road lac iePncd that IL | not
10 expected lie should bc abic 10 give Opuion
! upon mat tOiut except tne merely general OpnlUn
woh he had already giyen thai III the long run the
| principle OF rapid transit must conquer. What the
uacrs Oi the Gilbert road would do Ol course hc mad
lds q! telling, and as To the merits Ot the decision
he " ~ not prepared 30 speak.