The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-04
RAPID TRANSIT.

DECISION BIZ THE COMMON PLEAS, GENERAL
TERM, IN THE NINTH AVENUE RAILROAD M
JUNCTION suIT--soME GRAINS OF COMFORT
FOR ELEVATED RAILROAD TaAvEIIERs-rHH
ATTORNEY GENERAL ALONE CAN MOVE.
The question Of rapid seems TO be dragging
its slow length along the courts with about the rass
OF progress OF our street railway cars several
months ago suit brought by the Ninth Avenue
Railroad Company against the New York Elevated
Railroad Company which has, after the usual
variety OF motions and counter notions
and the trial before Judge Van Hoescn, in
the Court OF Common Pleas finally reached decision
the irst appellate tribunal The suit, as win be re-
membered was brought restrain the Elevated Com.
pany from running their above Thrtieth street
ana Ia practically intended compel the disuse Of
rapid transit above that point On tho trial Of the
before Judge Van Hoescn the complaint was dis
missed judgment given for the defendants on the
merits i win be seen by reference TO the decision
OF the General Term Of the Court o! Common Pleas.
Judge Daily writing the opinion substantially given
below, that although affirming the judgment of
Judge Van Hoesen, II Is distinctly stated that the
structure above Thrtieth is illegal and
mon nuisance
JUSTICE DALY's OPINION
The Chief Justice holds that the decision Of the
General Term the Patton disposos the qucs-
OF the power OF tho defendant any
turc above Thirtcth street. In that II dc.
cded that they had no authority make such exten-
son. the limited by statute to make such extern
sion having expired. Tho act OF 1875 giving this
power was unconstitutional and therefore imperative
II was urged that the passage Of this act was waiver
on the part OF the State Of tho forfeiture which the
Legislature might do without violating the amended
constitution The Court holds, however, that the de-
cslou the Patton adj udiCuta In this
rHK ATTORNEY GENERALS POWER.
Ma Y,I.A uut .ln ,tuhe ha
north Thirteth must under this decision, be
regarded as common nuisance, being without au-
thorty at law does not follow that the plaintiffs, the
Ninth Avenue Railroad, entitled injunction
against the maintenance OF II, unless II appears that
especial injury greater in degree and different kind
from that OF the public generally II they have not or
viii not they have no right Of action because i IS z
nuisance; ou. 1t is Tor the Attorney General
to bring the proper action to abate ii
on behalf Of the people. Tho plaintiffs can
maintain action except upon the ground that they
have viii sustain an INJURY greater or different
from that OF the community IN generals nor even then
they entitled to the KIND OF equitable relief which
Is sough. in this action, unless the injury is OF
Serious irreparabIe character and there has been
diligence on their part in applying for It.
TITLE TO THE STREET.
On the trial IL was claimed that the plaintiffs were
the sole owners oil tho franchise 10 and
operate q railroad through Ninth avenue, and
thus sought this Injunction, claiming that they
would be peculiarly ana specially injured 10 The use
public by the construction OF the Elevated road. The
Court holds that grant 70 the exclusive use Of the
not be acquired by implication, and their grant did
exclude the Legislature from granting to the de-
iendant rgut to construct an elevated road along
tho same although It might impair the value
OF their franchise previously granted TO the plaintiffs
COMPLAINT.
The specific injuries which plaintiffs claim "a
have sustained follows First that the PLAINTIFF
in common with tho rest OF the public; that It was
useful and available TO enable them 10 receive aud dis
charge their passengers convenentlyt TO shit tneif
horses another, to avoid collision with
vehicles To run their horses of the track, TO
enable other vehicles to get of It easily when the
Plaintiffs superior right to 1t had TO be assertedi
that space has been abridged by the defendants
structure to tho inconvenience and detriment OF the
plaintiffs in conducting their railroad; that II mpedes
access and cgress from their cars; that there 10
and facility keeping the track clear vi other
tracks with other Vehicles Second that the columns
on which the structure stands interfere with
The SS the 10 Ssy
of Keeping the space OF two feet each side OF their
tracks at all times In thorough repair third that the
projection the upper part Of the Defendants struc-
urc winch projects for about foot and inches
the roof OF their cars as they pass nterfcres
ter In removing the snow aud ice from
their track; fourth, that the dripping Of water
tho roofs of their oars; nth, thnt the
existence oil tho defendants structure aud the Of
and thus ,mpsirs the value Of their property ana.
lastly. tho effect Of this elevated road, which be.
yond rnirteth street unauthorizca BY law IS g d.
passengers from their road who but for the In.
ducements held out ny tho Elevated Railroad would
travel in the plaintiffs cara.
Judge Van Hoesen, on the trial below, decided
against the plaintiff upon all these points, and tho
Chief Justice thinks his finding is fully sustained by
tho evidence. The Chief j. iicc then enters upon
discussion OF these alleged special injuries. giving IN
elaborate detail his Tor granting Junction
because Of any OF the injuries complained or and in
CONCLUSIONS says
TOO LATE FOR AN INJUNCTION.
This is sufficient to entitle the defendants to an al.
1rmancc OF the judgment, without considering the
additional gwen by the Judge below that II Ia
than three years the defendants began the
construction OF their road that the plaintiffs, having
their In the same avenue necessarily knew
what tho defendants doing, and, having suffered
them without complaint 60 FOR considerable
In putting up continuous and expensive structure,
they cannot afterward apply 10 court OF equity TO
them enjoined from using wha. they have erected
without any objection complaint being, tho
course Of the erection made by the party afterward
and equitable rule that has been applied in
cases. Whatever injury has arisen may
from this unauthorized STRUCTURE the plaintiffs
share In common with the public, the remedy
tor which is action by tho Attorney General on
behalf the people. They have SHOWN that they
sustain any greater different injury may
10 any one in the oil the street So far there
has any loss or injury 10 them, u has either
| been OF very trivial kind, such
be FULLY repaired by action for damages.
nterposing It's equitable power stop the further
ming OF the Elevated road upon the sole ground
OF tie great peculiar irreparabe injury II will or
may do to the piainuns' road. Tho judgment should
| be affirmed"
DISSENTING OPINION
Judge j. +. DAILY writes n dissenting opinion, In
which he that his impression Is, far the
columns Immediately adjoining paintlfs' tracks arc
concerned, the decretal injunction asked for should
have been granted