The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-04-18
THE COURTS.
The Injunction Against the New
York Elevated Railroad.
Important Decision by Chief
Justice DAILY.

ton against the Elevated Railroad restraining 1t from
constructing and excavating for that purpose
tho vault front OF the Pacific Hotel In Greenwich
street. such injunction having been obtained through
application behalf Of Mr. John Patten the owner Of
the hotel, an incipient riot, which seemed imminent
oifectually npped in the bud An important ques-
ton, OF course whether this injunction would be
sustained. few days since the came up for
argument before Chief Justice DAILY in Special Term OF
the Court OF Common Pleas A decision In the matter
given yesterday continuing tho injunction. Judge
DAILY has written lengthy opinion, but the material
points are embodied in the epitomization OF It given
below.
Judge DAILY opens his opinion with recitng the facts
OF the case heretofore published He thcn traces
tho title the land which the Pacific Hotel is stu
ated to l743 when the same WAS owned by Derrick
Dcy with particular reference to plaintiffs right OF
property in tho vault, and then shows that the right
TO the Of such vault be taken away or in
teriercd WITH except by authority Law. Hc decides
that such authority Of law exps~ ~ t..sc-s
case, particularly s'sc indifference with the vault
attempted 10 DO madc without compensation 10
the plaintiff; that the latter Is entitled TO the injunc
ton asked for. having settled the preliminary point he
next discussed the question whether the railroad COM
pany any right construct the turnout In ques
ton In this connection he the act under which
what was known as "The West Side and Yonkcrs Pat
ent Railroad Company was Incorporated IN 1867 tho
progress OF experiments made under such and the
various supplementary acts and finally, the act
under which the present company Incorporated,
giving Increased privileges and franchises TO tho pres
ent company, which had acquired by purchase under
mortgage foreclosure and sale and other transfers all
the rights, powers privileges and franchises OF tho
original company. He claims, however, that tho pres
ent corporation attempted to avail itself OF ITS alleged
right under the act OF June IL 1875 in direct disregard
OF the important provision in the amended constitution
OF 1875 which took effect the LIST OF January OF that
year. From this point the opinion proceeds AS fol-
lows:-The seventeenth section OF article or the
amended constitution declares that mo act shall be
passed which shall provide that any existing law
any part thereof shall be made deemed part OF said
act or which shall that any existing law or any
part thereof shall be applicable except by inserting It
IN such act Now this act OF 1879 declares in general
TERMS that the present corporation Is confirmed the
possession and enjoyment Of the rights powers priv
leges and franchises conferred upcn the former corpo
ration by the acts OF 1867 and lS6S fully and
IT large rs they were granted by tho aforesaid
acts II authorized the present corporation to con-
tracks OF its elevated railroad within Ave years. along
and the streets and places specified and permitted
In the aforementioned acts, in the mode aud
form prescribed by said acts I" Here these acts,
many parts of them, made applicable without in
sorting the laws the parts made applicable, the
amended constitution requires The parts Of the pre-
conlerrng the rights. powers privileges and
franchises referred TO and the parts specifying tho
streets and places along and over which railroad
scribng The mode manner and form OF it, are not in
serted. In other words, attempt Is made by this
enactment make important revsions of these acts
applicable without inserting them, which the amended
constitution declares cannot be DONE and all the lcgis
iaton, therefore, was unconstitutional and void The
power construct the turnout which tho defendants
about to build in front of the plaintiffs hotel and.
indeed their whole authority to construct railroad in
city. rests entirely upon these provisions in the
Of 1875, provisions enacted in direct violation OF
the prohibition in the amended constitution, and there
hnlt ienfsI cf
tho defendants right 10 build and extend the road
along Greenwich street and Ninth avenue 10 Har-
lem contained IN the prohibition of the seventh
ton OF this OF 1875 which declares that they shall
build extend their road along any
or avenues But tins was meant 10 be and necessarily
must be taken connection with the previous Affirm
provision enacted TO confer the power upon the
defendants build and extend the and along
Greenwich street and Ninth avenue. and IL that
affirmative provision Is void because 1t enacted in
mode forbidden by the constitution TINS implied
ognition which Is not an active clause or grant, will
not, in my Judgment suffice to confer the power ce
the Importance OF the constitntionality OF
these acts and fully impressed with what has
been urged upon the argumcntthc great benefit TO the
public Of tnis road as means Of rapid transit But
the plaintiff has brought before the courts not only the
question Of the rights OF the defendants 10 enter upon
his vault but also their right to build any turnout at
all in front OF his hotel upon the ground that that por
ton Of the act OF the Legislature which Is re-
lied upon comprising authority to do SO Is unconst
tutona and VOID The preliminary injunction granted
by Judge Van Brunt restraints the defendants from
doing either, and after careful examination OF tho
question, come to no other conclusion than that
the defendants have no right to interfere with tho
plaintiffs vault and derive no authority whatever from
the question tho turnout front OF
his premises Tho preliminary Injunction must there
fore be maintained and made permanent
DEATH THROUGH NEGLIGENCE.
An important question touching the construction of
he law giving damages death by negligence was
argued yesterday before Chief Justice Daily at Special
Term OF the Court Of Common Pleas In September,
1872, Joseph Wood employee OF Williams & Guion,
was accidentally killed board Of of their
crs, while she taking in cargo, by reason OF the
hosting apparatus becoming detached and falling upon
him. Suit was brought by the widow OF tho deceased
against the steamship company Tor $1,000 damages.
The defendants IN their picadlngs TO the complaint,
SET up, bar, that the action should have been
brought within years from the time OF the death
OF Joseph Wood, and Mr. Nash. Their counsel. main
tanned that the statute as last amended In 1870 OK
pressy limits did the two prior statutes OF ISL and
1SiQ the right bring the action within two years
alter tho death OF the party To this plea tho plaintiff
entered demurrer claiming that tho Limitation IN
question expressly provided by the laws OF ls41 and ls9
was repealed by implication by the net OF 1870 Mr..
Gcaron counsel Tor the plaintiff, further argued
the Legislature had by their enactment OF 1870
altered the law TINT the limitation therein applied only
to the right the verdict where
the suit brought within two years, and that the
special limitation contained in the Laws OF 1S41 and
1S49 having thus been repealed the general statute OF
limitations governing factions upon liability created
by statute other than penalty or forfcnrco applied
ton should be Overwhelmingly, six years after tho
right OF action accrued.
Judge DAILY intlmatcd that the question OF the
close one, and as there had been no
ported adjudication OF u as yet in the courts he would
take the briefs OF counsel aud his decision
the parties disposed TO settle tho question dcnn