The New York herald., 1876-08-16
The Ninth Avenue Railroad Injunction SuitAsainst
The Greenwich Elevated Road
SIGNAL TRIUMPH FOR RAPID TRANSIT
Important Decision by Judge
Van HOeSen.
Lively Prosecution OF the Anti
Garbage War.

At length, after . thorough examination OF the
vouminous evidence and briefs OF the lawyers Judge
Van Hoesen OF the of Common Pleas, yesterday
rendered his decision the suit brought by the Ninth
Avenue Railroad Company against the New York
Elevated Railroad Company, more popuary known as
the Greenwich Street Elevated Railroad Company
heard before him u, Special Term. The suit. as will be
remembered was for an injunction restraining tho
Elevated road from using dummy engines upon any
portion OF its route, from constructing or using any
switches turnouts south OF rhrtieih street. or main
tanning any track whatever upon Ninth avenue north
OF Thirtieth street After rccting the objects OF tho
suit Judge Van Hoesen IN his opinion-an able clab-
and exhaustive one-sates that the right of the
Elevated Railroad Company to maintain q single track
upon It's route below Thirteth street. without switches
turnouis, and TO cars this portion OF their
by endless chain attached stationary
engines placed underneath the surface Of the street,
Is not questioned; but following the decision oi the
General Term that the construction Of the road above
Thrtieth street subsequent the authority
ing tho right tor sucn construction the time allowed
by the act having expired was without authority Of
law he was bound To declare that portion OF the Ele
vatcd Railroad ON Ninth avenue, between Thirticlh
aud Sixty first streets, common nuisance This
portion OF the road being pubic nuisance he holds
that private person can bing au action for sup
preston without showing some special damage
Eiined to be sustained outside that which the
Munty ut large sustalns aud thai such injury Direct
u
bcctug ovanescenL The right of the plaintiff to
injunction depends upon It's having shown that It has
sustained will sustain damages direct substantial
peculiar itself by the unguthorzed construction
Or operation oT the Elevated Railroad. IL Is 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 on the rest Of the public The plain
IN 3 peculiar injuries defined be IN That the
Elevated Railroad Company, having authority
d track north OF Thircth street. invading the
irunchisc OF the plain,in which is exclusive and IS
Ink ha nj vi I'M
ments held out 10 them by tho Elevated Railroad,
would travel upon the Ninth Avenue Railroad ~ That
oil the erected above Thircth street and tho
columns the roadway below Thirteth street inter
fcre with ingress to aud egress from plaintiffs
49, That the OF dummy engines irghtcns the horses
81 the painin and causes them to njure themselves,
and furthermore, frghtcns other lorses and
Them to nmers plaintiffs ears t9 That the
Railroad caused by the use of steam
by the erection OF columns and track in and
tho roadway great as to warrant the apprehen
unless such obstacles removed by process
OF the Court, The franchises OF the Ninth Avenue Com
pany will become vaueless aud its rights and property
seriously Injured, II not destroyed He holds that the
hrst specification OF special damages supported by
The facts and any other city railroad might with
equal propfety claim franchise cxclusivc that
there is evidence whatever TO sustain the alega-
tons that tho columns OF the Elevated Railroad OBJ
TO the planiiii's ears that tho act OF
1865 giving the right To dummy engines has been
pronounced unconstitutional by this Court; that II
the act OF 1870 does authorize the of dummy n
cines tho Court has not the power cnjon their
the Elevated road below Thirtcth street. inasmuch
structure; that II the employment of dummy
engines be authorized by Legislature, plalntn
rs not entitled to an injunction because
those engines ir.hcn horses; that there can be upon
the evidence but little doubt that at the present Limo
.he disturbance TO The painhs horses rs So slight
10 be almost nappreciable Tho Judge concludes that,
his OPINION If the franchise OF the plant be-
valueess it will not be because the columns OF
the acendant obstruct passengers who attempting
10 enter or leave the Ninth avenue cars because
dummy engines irighten horses and To be
broken IL viii be simply because the people prefer the
NuIpir RAJ WNV a ho hat
Is be controlled by injunctions 1t only remains
for inquire whether the defendant has the right
to dummy engines lis road south of Thirteth
street have doubt that II has that right. Section
{ o the act OF 1875 provides that tho deendant may
make and adopt such alterations and improvements
Ia motor power and us application as certain commits
Uoncrs may authorize or approve. What COMMISSION
srs were Ia possess TINS authority IS determined by the
preceding section OF the ac- They were the comns-
soners who had been appointed under the act of 1867
to inspect the West side and Yonkcrs Patent Railway
aud TO supervise The manner OF Its construction They
designated, not by their individual names, but by
their official title 1t is said that such designation is
utterly invalid, because section 8, which describes
them, goes on IN violation OF section L. article B. of
the amendments TO the constitution confer upon The
comm by mere reference to tho act OF 1867
powers which specified Ia that act but which could
not be consttutionay conferred without being
In detail n the act of 1867. IL is true that The COM
derived power under section 3. But
toD does, by lis terms, confer upon them an author
hy which could BE- exercised without the slightest rel
crcncc to the powers created by the act OF 1867
an authority to approve, II they saw fit,
the alteration and the improvement in the
motor power when tie defendant might adopt The
adoption OF the dummy engines by the defendant, and
the approval OF such adoption by The commissioners,
after tho passage OF the of 1915, were proven,
anu in fact, not disputed 1t results, therefore, that
the defendant may lawfully use dummy engines It's
road south OF fnrtieth street do not attach any
Importance the naked allegation OF the plaintiff that
the Of the Elevated Railroad ovcrhang the plain.
TIL 3 at certain portions of The route. No injury
the plaintiff shown to result from tho projection
OF the dcicndans except that OIL or water
tnos dropped upon and spotted the root OF the PLAIN
tn's 1t proven that the dropping oi OIL
consequence o the operation of the de-
tendants cars but rather occasoncd by negligence
the wearing out of the waste used in the journals
II the injuries to the plaintiffs IRON the oil
sufficiently serious require the interposition ol
running OF tue cars but would RESTRAIN the OF such
materials as soil Tho canvas with which tho
roofs OF the cars covered There is another
sidcraiion winch, though not urged upon tue argu-
mcnt strikes me as oi great Importance. 1hroe years
have elapsed since the defendant began to construct
It's railway north OF Thrtieth street According the
decision o! the General Term OF tins Court, every
column anc every ra added TO this structure increased
a common nuisance The plaptIl, aware OF its rights,
and the danger with which It's property threat
encd, lay quietly by and without making the slightest
effort 10 stop the wrongful obstruction OF tho street
permitted Tie defendant, aitor year. 10 proceed
with us ~ork ana spend It's money. such acqucsccncc
should be bar TO equitable reel III has been
that where person who structure IN progress
which he knows must deprive him OF the enjoy OF
rights which he possesses permits 1t without objection
ON his part 10 be hnshed great expense, he
obtain the aid n court OF chanccry To null IT down
sett 32 Law j. Ch., 2s6l The Complaint should 10 dis
missed with costs &c. the defendant
THE GARBAGE WAR.
fresh, not to say lively impetus was added TO the
excitcmcnt caused by the dumunr of rarh,p, In Tho