The New York herald., 1877-10-03
The Effort to Begin Work Stranuousy Resisted
by the Sixth Avenue Company
ARGUMENT BEFORE JUDGE Van VORST.
Interesting Affidavit by the President OF
the Gilbert Company.
THE QUESTION STILL UNDECIDED.


ings in the case OF the Sixth Avenue Railroad Company
against the Gilbert Elevated Railroad Company was
resumed yesterday, before Judge Van Worst, in tho
Superior Court Tue defendant, as is understood,
seeks 10 render cooperative the judgment o. Judge
SedgewscS enjohns the building OF the road claiming
thar the recent decision OF the Court OF Appeals has
this effect
AFFIDAVIT OF
Mr. Lowery, counsel tor the Gilbert company,
opened the argument by reading an affidavit made by
William Foster, Jr who after stating that he is
President OF the Gilbert Elevated Company, and has
been such for tho space OF nvc years. and is familiar
win the business ami legal affairs OF the com pany,
goes ON TO say that certain statements cor tanned in
the affidavit OF r r. Butler apparently incorrect anu
oased upon mistaken belief The dcponcnt denies the
existence OF any contract the construction OF the
Elevated road between the defendant and
any private ring and also denies any persons
ncctcd with tho company design TO make any undue
or oxiravasan profit out Of the building OF tho road
AZ the expense OF the company. He further denies
that any directors or officers OF the company have
procured any charter or other act with intent - de-
sroy tho benefits TO accrue to stockholders from the
building OF the road, and deucs that tho defendant
company has agreed TO pay tho Now York Loan
and Improvement Company. or TO any other person.
S. 0Oo 900 per mile Tor the construction of the pro.
rosed road, or that they privy any contract IN
be paid $500, 900 as the cost OF Its construction or
that the effect OF any agreement made is to dvcst tho
defendant o! any OF its rights rranchisss aud ho
denies each aud every other allegation concerning tho
relations and transactions between the defendant aud
Improvement Company not aitcrward uduttlcd.
With regard TO the statements contained IN thar am
davit thu dcponent alleges the facts as folIows
The stockholders OF the Gilbert road being desrous
TO build tnclr road IN the efficient rapid and
their stock in joint interest, which should
prevent dissipation and separation OF existing inter-
ests pending The construction o tho road,
unite all their stock in one joint interest, thus TO
unite their funds with the view Of operating it when
done under the charter and power OF the defendant
no STOCK IN THE
Acting under the advice OF counsel, they resolved to
make this union OF their interests corporate form
and accordingly, having associated themselves in In
tcrcst with other capitalists. who organized
uncer u charter granted to tho New York
Loan and improvement Company they have
since, through the instrumentality Of that com.
pany, contributed and intend to continue
the contribution Of their money to the build.
ing oil said roud without the issue TO the public OF
any stock or bonds whatever, and without asking
financial aid in any way IRON tho public, being repaid
the stock ana bonds Of the Gilbert Company issued
as Tho road Is completed all profits which may DO
the Gilbert Elevated Railway Company anu its stock
holders. The suit formerly brought by DR.. Gilbert
against the defendant was discontinued alter it
was begun, oil which the dcponent believes the aianl
Butler was aware at the making oi his AFFIDAVIT Tho
contract OF the New fork Loan and Indemnify Com
p'uy Is to deliver to tho Gilbert Elevated Railway
Company a completed road, with all stations
and equipments, over the whole OF It's line
beginning ut the Battery thence to the Harlem River
onthe west side OF the CITY; thence along the Harlem
city the place OF beginning. Tho contract with tue
Edgemore Iron Company referred to in SAID Buffers
uthdavit is only for portion OF such work-does n OF
II. In inns r.ul
estate, turn outs, switches, side tracks, shops and
engine houses nor any OF the many other heavy cx
pcnses necessary to be incurred; nor does provide
for any OF the heavy claims Tor damages which plain
t asserts the Gilbert Company is haDlc ior all which
! Is covered by the New York Loan and lmprovem
| Compuny's engagement 10 furnish completed road
! with equipment and appurlenances free ana clear.
| gatons of SAID Butler In this regard not
pertinent TO any question involved In tins notion
he verify believes they are introduced mcrely the
hone creating prejudice ana false ideas put Dlic
mind DepoEcnt Is ,ed to believe these TO be the pur
poses with which these entirely nts
and estimates arc put forward in said affidavit IN
part because he finds that by the first report OF the
state Engineer, based upon the sworn statement Of
the officers OF me sixth avenue Railroad Company,
the actual cost OF that road including real estate aud
equipment, has been s,os,o'9 70 per mne. rne real
estate acquired by the defendant for It's general uses
Is mol likely 10 DO less than that required by horse
railroad aud the cost OF the Elevated iron Railway
cannot, as deponcnt believes, be less than i've tunes
that of laying the plaintiffs rails the surface of
street
CONTRACTS BENEFICIAL.
Dcponent dcnie, the result the contracts and
arrangements above referred TO calculated to I'M
poversh the defendant but says that on tho co IN.
trary they are calculated and intended to put It IN
possession oil very valuable and extensive property
Ior which Il will owe polnnv 30 auy person but n,
stockholders and he verify believes that SAID com
pany will at al times b. easily aD to Tor all
damages which the plaintin may recover upon
own Interpretation oil us rights aud estimats OF ITS in
Jurcs. ana Us to which deponcnt ON information and
bcIief AYERS that no legal foundation exists tor the
claims set up, and that the put
forward without any expectation that they
will prevail, but merely convenient ground
upon which to procure legal delays and postpone tho
enjoyment by tho defendant Of rights conferred on
II by law In respect to the allegation said AFFIDAVIT
that the alntilf has taken any steps procure
title to the defendants pretended rights of property In
the sixth avenue. dcponcDt further SAYS that, be
understands the claims OF plaintn set forth the
complaint III tins acton said affidavit the SAID
sixth Avenue Railroad Company claim exclusive
rgnt IN the air TO any height above their tracks the
exclusion oi all other means oil traispoi aton Of pas
sengers, aud IN support o this right have rs depo-
nent IL informed ana bel ewes recently aud the
favorable decision OF the General Term the supreme
Court upon The Rapid Transit act which ms now
been affirmed IN tue Court OF Appeals, caused
10 be built upon tue top OF certain OF It's ordinary
horse cars, which have been exclusively used py i
since the year 1901, certain small rods each
corner OF the car aud has spread over the same gnt
covering OF canvas thus increasing the height ITS
ordinary cara from about nine cct TO about ntccn ect,
this bong done, AS dcponcnt IS Informed aud believes,
Tor tho purpose OF producing destructive legal aud
physical collision between the canvas tops OF the
norsc cars and Inc wrought IRON griers oi tho do
fendanis Elevated Railway, Which ar" to bs placcd
above the pnintins' track AT height 81 about fourteen
and halt feet rhe plaintiff also claims TO exclude
Tue ucpohent tTom setiluS uH W WV Toau-
way OF sixth avenue aud outside vi the plantns rail
road tracks beyond space required To be
pied by It's passing cars tue pfetenco that such
space may be required by AZ some time Tor laying
turn outs and side tracks along sixth avenue, none
OF which side tracks or trrn outs deponcnt
is informed aud believes have ever yet been required
or laid, an all oil winch might, u authority Tor tho
same exists. 10 thrown oaI between tue dctendanps
columns, which VIII be placed ut distances OF ny
apart and Will occdry superficial space Ia tue
way oi only aboai iwcisc nenes square without any
or interruption whatsoever 10 tho bcs-
ness of tho plaintiffs or injury OF It's irauchlse
righs.
VALUABLE FRANCHISE
The plainih alss claims that ns access TO certain
lots owned by u on sixth avenue will nc mpcdcd by
the erection oi the defendant posts aud columns ia
iront OF said lots, Notwithstanding said posts aiorc
sad viii bc scs III distances ol Gty iect aud Will
occupy spaces oil only about twelve inches square,
thus leaving ortyn Ieet oi unoucumDcred roadway
III iront o planting lots out OF eyory
nifty iert DeponeBt advised that tho soic
authority under which the plaintiff has Tor moro
than twenty -nvc years cnjoycd valuable franchise
IS iouDd ia certain rosoutlons by tho Common Coun-
Gil III TINS city, passed 10 the year 1851 under which
taa at4ttu