The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-06-06
Deadly Thrusts at the Greenwich
Street Elevated Railroad.
Important Charge by Recorder Haekcit on
the Excise Law.
UNHAPPY MATRIMONIAL EXPERIENCES.
Postponenent of the Tweed and
Sweeny Ring Suits.

Pleas gave his decision continuing the injunction
granted Mr.. Patton, proprietor OF the Pacific Hotel
prohibiting the New York Elevated Railroad Company
from constructing turnout in front Of his hotel such
injunction having been granted chiefly on the ground
that Of the Legislature under which tho rail-
road company assumes to and ran IT'S road
were unconstitutional, Judges Robinson and Van Brunt
Of the same Court, have been reviewing the sub
miucd to them on appeal while sitting as judges at
General Term. decision was rendered yesterday,
both writing opinions, cmDodyhg the results
Of their in icstiga,ion. They both arrive at the
same coac.uson Chief Justice DAILY that
the injunction should be continued. Judge
Robinson writes by far the longest and elaborate
opinion The points taken down pretty much
the same as those embodied in the opinion of Chief
Justice Daily. Alter reviewing the facts OF the
heretofore given fully In the HERALD he holds that the
plaintiff does not show in himself any title or interest
the land in the street in front OF his lots. OF
It's line beyond such posscssory right the use
II the vault under the sidewalk as he Is permitted
enjoy by sunerance OF the Corporation lie then goes
TO state that the locus quo within the bounds OF
Greenwich street originally below high water
mark, and belonged 10 the Corporation by virtue OF the
grants made by the Dongan ana Montgomery charters
Of lands cxend ug 400 feet beyond low water mark in
the Hudson Rver that by the Dongan charter all the
streets within the city granted by the Corpora
lion Tor public use; that by the Colonial act OF October
o 1851, conerrng power the Corpora
ton 10 open streets, reasonable satisfaction
TO be given Tor all the ground taken and
employed for of streets; that the deed Derrick
Dcy reservng the right 10 lay Greenwich street
conferred the same right 10 the street as TO other
streets which are owned by the rorporaiion subject
all such uses Tor pubic .purposes rs the legislature
may determine 70 De proper or eSleucnt No cx-
ccptlon can be taken To The use OF The sidewalks by
any person Tor the construction oil vault under the
sidewalk when such vaults do not interfere with the
pubic OF the street. This, fact has been long
permitted. Judge Robinson goes Ia say that the
act OF 1867, under which dccndants claim to do The
work complained Of only referred to a railway 10 be
operated exclusively by OF propclling cables
tached TO stationary engines placed beneath the
face OF the street through whic the railroad passed.
aud should be concealed from view. lie goes TO
state tho powers OF the commissioners TO inspect the
and operation oil the road and II they APP
proved Of II the corporation authorized TO extend
us line northcriy along both sides OF Grcenwith street.
north the Harlem Railroad. The sixth section pro.
vldetL that II the vaults intercr,d with compcn-
saton should be MADE IN the manner provided
1850 Whenever Interference With
the public use OF the street became a
public nuisance no concession made by the corpora
tion could be interposed as defence AGAINST euch pub
lie cessity, and neither docs the statute OF public
limitations sppiy against public nuisance. Private
enjoyment must yield TO public nee, ssity The PLAIN
hns case, must therefore, stand upon his right Of
dress as against the defendants acts public nut
sance by which he Is specially injured unless entitled
10 claim compensation undcr the sixth oil
net OF 1861 The defendants right TO construct the
railroad track which they intend 10 erect front OF
painns property is founded on the act OF 1867, chap
ter ASP, which authorized the building OF expert
Westchcser They claim other rights under sup
plrmcntal act passed June j. 1865 This last act is
clearly unconstitutional and Invalid on the ground
that than subject is expressed the title
The title merely assumes TO add something supple
mental to he former act but what be the charac-
ter OF such supplementary enactment not disclosed
The subject of such additional egsiation-o wit, the
granting of addtopal powers 10 corporation
referred TO in the previous ACT. should have
been expressed in the title 10 give II effect
The collection OF revenues in the county
also clearly additional subjcct-one entirely io cgn
The being local. maniicstly embraces than
,ubiect aud that granting an additional power is not
oppressed in the title. The grantees required by
fecton 40 OF the act OF 1867 to mile
from the Battery within one year from the passage OF
tue act April - 1867 llcgaI delays cxccptedl aud 70
complete the road within five years thereafter This
the defendants, asslgnccs OF the West Side and
loEkcrs Patent Railway Company, failed 10 do. The
grantees OF such franchises accepted the with the
implied covenant thar part that they would con
ttruc the road within the time limited. and whatever
the defendants have done in tue OF the
road since the expiration OF their grant j. nuisance
that may be abatcd by any one especially injured
10 the extent OF the wrong done him. The uncxccuted
powers conferred by the act Of 1867 to build tho road
reascd and expired 1879 and they be regarded
thereafter as II they had existed The act OF
June IL. 1915, which defendants claim reviewed and
resuscitatcd all the rights which they had lost BY
nser OF the original grant, Judge Robinson holds TO
be contrary TO sections IL and is OF the constitution
and therefore void. Tho Legislature had right TO
authorize railroad to lay tracks when such right
did not exist under statutes prior TO the amendment
article OF the constitution In other words the Leg
islaurc could not confirm what II had right grant
IL could operate 10 confirm acts already done
justify authorize the laying any other railroad
track than such as had already been laid Judge Rob
insou thinks that the claim Tor compensation made by
the paintn tor interfering with his vault not en-
little him 10 an iniunction but being purely entitled
II upon previous onsidcrations, the order appealed
from should be affirmed.
Judge Van Bruni holds that the constitution oil 1875
forbiddlng the granting TO any private corporation OF
power lay down tracks, plain if tho trainers
OF the act OF 1873 had studcd it they might have con-
structcd bill above criticism lie reluctantly
obliged TO TO the conclusion that the OF 1878
not mere waiver OF forfeiture Of The act Of 1s67, but
ttfarrtn ar1f ha amin
b. sustained,
While the above decisions being carefully read
by persons interested IN rapid transit, Judge Van
Hocsen, holding SPECIAL Term OF the Court Of Common
Pleas. was listening TO the opening in the suit brought
by the Ninth Avenue Company against the
Elevated Railroad Company To restrain the construction
operation and use oil an elevated railroad IN Ninth
nue. and also TO restrain the operation OF the Greenwich
street road on the ground that 4 Is unlawiuy operated
Mat u 10 unlawful structure and that 1t is pubic
the Messts John a. Scribncr and T.. W. Bangs
representing the Ninth Avenue Railroad Company and
Ex.Judgc Emmoi and Messrs !. J. vandcrpoel and 4.
Z. Deevan the Elevated Railroad Company. Judge
Briggs. one Of the Judges Of the Court OF Common Pleas
In Philadelphia. occupied seat on the bench by the
side OF Judge Van iiocsen Mr.. Scrbner opened the
ease at great length speaking several hours lie
BY stating that ~ 1906 individual thought he had
solved the problem Of rapid Application was
made 10 The legislature 10 assist IA the solution OF this
problem. which act was passed on April 20 OF that
yeat. lie then recied the provisions Of The
with reference previous act passed
Ia 1850, to which the latter was supple m,ntary
A plan was conceived Tor All elevated railroad The |
gentleman who procured passage had a company |
incorporated under the 81 the s.Nest Side and
Yonkers Patent Railroad Company They we're ex-
Guided from the streets vi the city. By subsequent
act tho Legislature also exciued the continuation Of
any road within the city limits. The stress OF
New York beng shus closed against these ger temcn
bhcy made tattncr application TO tue LEGISLATURE and
got an act passed providing Tor the continuation OF
experimental railroad halt ulc above Battery place
BY this act thc engines were TO be stationary, with
propclling cable He read most OF the and com |
ncnted The fact that tho commissioners under the
vet be paid by the railroad company lilo |
sontcndcd that all the rights conferred by |
lhls act expired April ~. 1873 Notwithstanding
his, however, the road was continued from time TO
Vine t Il has now reached Fiity-nnih street They |
Rave also constructed kind oil road greatly different
rom that allowed 10 be butt for experimental |
purposes. lie next read the act Of lsGs commenting
ipon provisions He insisted that various switches
md turn being constructed without any legal
mthority. They expected 70 prove not only that the
rack OF the elevated road oyerhangs the Ninth
ivenue Railroad but that drippuss Of oil damage the
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