The New York herald., 1877-10-04
THE COURTS.
The Suit of the Sixth Avenue Against
the Gilbert Elevated Road.
4sat 4fMf
CLOSING ARGUMENT FOR STAY.
Legal Setllement Of Controversy Over the
John D. Lewis Estate.
MULCTING THE CITY

against the Gilbert Elevated Railroad Company was
concluded yesterday before Judge Van voist, OF the
superior Court Tho crowd present listened 10 tho
proceedings with marked interest. Judge Allen, in
bis opinion In the OF the Gilbert Elevated Rail-
road, asserted that the properly whose private
property taken Tor or damaged by the construc-
ton OF the road. taken for public use be justly
compensated. In this case, said Judge Comstock,
there grave questions relative TO tho rights Of
property owners which had not been touched by tho
Court Of Appeals Tho constitution and the
law require that the compensation for prop
erty taken shall. prccede the taking Of such
property. Il is not deemed that property can DO
taken under tho right OF eminent DOMAIN but The
consu ION guarantees the rignl oil proper satisac
tion for such property taken The injunction Is TO
prevent the taking Of the property without compen.
sat on. ana the motion for stay in effect
away with that injunction and render 1t null and void.
The deenuants claim they have power proceed
unuer tho appeal thcn II that be tue and they
have alth II tlcr lam, they VIII proceed without
couIaRc 10 proceed anu cume TO tho Cou Tor order
TO show thar ihey shall not DO punished orv.olling
the INJUNCTION, which IS The very OF Juag-
ment of this Court The defendants want tns Judg-
ment suspenied-not mere stay of thc execution.
lacy do beicvs that the law will hep them
lac the Injunction, aud therefore Wish The Court
give them authority To violate IT, The law does not
lated, and II they the offenders can be brought
lnto court lor contempt. 10 prevent this
hey snail not be dealt with IN the
eveut OF their proceeding the construction OF the
road. The Sixth Avenue Railroad Company Is The
owner OF some OF land abutting the Sixth
hvenuo also OF charter or franchise Tor the running
oi railroad, with double track, requiring the OF
hundreds oil aud horses and other property
sary Tor the successful running oil the roa0 The
sructon OF the elevated roa Will inors ali this prop.
erty. The patntiHs also claim That The Gilbert as
not being constructed according to the companys
franchise. The Rapid Transit Commissioners were
prohibited from laying OUT any route which should
".
the road must Broadway at Ihirlylouth street.
Iu legal POI nl this was detrimental TO tho
ton ol the road along Sixlh avenue, AS prevented
the Gilbert Elevated Railroad from having legal CO.
incidencc TO buiid coincdent railway. The bases OF
The columns take up i've ieet oi the street. and the
original plans showeu THAI these dvc the street
can DC taken away every thirty.srven and hall
avenue The erection OF these rows OF columns
especially IN iront OF the plaintiffs depot
iranchise ard % which me plain.li Is entitled while
the same columns, IN front OF the pIainlin's iaud
would deprive II OF portion oil lis value,
qucnce OF their being pubic nuisance The running
OF steam cars, with It's attendant nose ana uproar
every hye minutes OF the day aud ngni, would 10 an
injury to the paint's franchise running the horse
raiii DAD. would interfere with rights granted by
Charter from both the city ana state. The city gov
ernment granted franchise, by IL the plain
TIL Is compelled to remain the Skin avenue aud
run the railroad. We protest against Doing Compelled
to run a railroad with sucn disadvantages as would be
tnhiclcd by the construction oi the Gilbert
Elevated Railroad, which encloscs the track
~ a,,,, within an Iron cage, and covers IL
are constantly proceeding day ana night. Judge Sedg
wick has found .nat the inncnlse OF the plaintiff has
been invaded oy the construction OF this road
remedy for such INVASION is u SUIT tor damages and
an injunction which has been granted and which is
sought now 70 sci asie rsNs .sHa.g 31 <
Judge Comslock continued mis- argument at length as
10 tho power OF the Court TO grant relief demanded
he then Went on 10 state tha the complaint stated
that The sixth avenue company owner oi
iorty lots along tue line Of the proposed elevated
railroad aud also OF franchis ise to run horse
some twenty 1--we years old, which would be materially
injured by tue building of this road aud tuer bill
Tor reiiet tucy saa tue defendants could not
because they had abandoned their righ,s The COM
plainants then set forth tler properly resting on
guarantees ~ old az Asgua Charia ITSELF He on
10 say that tho Rnpiu lraus Commissioners were or-
bdden TO uuild any route which should cross Broad
way. This route did cross Broadway, and erection
Of me ROAD was paipa0,y illegal The Judge then went
on to recite the facts that appeared the
case before Judge oedgwick.
suage Porter followed Judge Comstosk Ia q very
elaborate and exhaustive argument support The
motion. He contcnded that their 10 cross Broad
way at any point Was perfectly vested anu
aud not influenced by any act cited by couuaea He
then went Into tne question Of theT right 10 stay,
aud claimed that tner appeal had been settled
The new code c.me into effect there would have
no OCCASION IoT tuem TO into court, pro-
visions or the code had rendered necessary 10
ask Judge 20 stay, anc thus could navo been done
pAro. buL they thought their uuty, considering tho
great questions anu interests invoved, To glvo the
other side chance TO bc heard They had beon heard
ana 1t seemed to him that there was no reason why
Inc order asked Tor should not be granted The
decision OF Judge Scdgwick, enjon,ug thom
rom ouidlng tne roaa, was gwen ON the
ground OF the unconstitutionality oi tho Rapid
Transit act. la his OPINION he distinctly said that
Twas unnecessary TO discuss the question Of
ages or compensation. The Court Appeals had de-
cfed this act 10 be constitutional, md the iruncton
was imperative The plaiotfs d no properly which
use; tncy had easement he admitted but ease
msnt was not taken or affected. Moreover the law
dd not enJoin pubic work because copseq uebtial
damages might eDsuc. Judge Porter, alter more
remarks upon these points concluded his argument
AZ the conclusion OF the argument counsel sub
mtted their papers 70 Judge Van Worst, has toe
matter under adyiseucnt,
The motion Tor reference to ascertain the amount
OF damage done by tue pian lin 10 tho defendant "a
the sult y. the Ninth Avenue Company against Tho
New York Elevated Railroad Company was yesterday
the lriai Of the suit OF Rufus f. story against the
New YORK Elevated Railroad was yesterday inden.
niely Postponed. IN i ..s,Ia Hls
OF having a conferences with Mr. Eyarts as to ther
chances on appeal from the recent decision Of the
Court OF Appeals IA tho Giibert case.
ESTATE or JOHN d. LEWIS.
Ia The case OF Henrv Lows against Mary smith and
others, winch is Inc legal title given tho now cec-
bracd suit involving the construction OF the viii OF
the late john D. Lows, The Now York dry goods
merchant tho counse appeared yesterday before
Juogc Jarrett to settle the findings OF law and fact
tins beng necessary Prerequisite before judgment
can 20 entered IN accoriluce with tue decision of
Judge Barrett rendered Ucore the summer vacation.
II VAL 10 rccoiIeeted that wa proven that John ID.
Lewis Wac tue son OF a save negro woman s~iatner
his mo her had d ny ,hc Underground railway routc
Jonn u. Lewis subsequently, came to shis CITY, and
bccomiug a partner ol John G. Hsyilan1 ana
William II. Linusiey, under the Wen known
Grin Of Lewis, Aavnand Co., anasscd
large fortune. % his death he left u wall.
a very odd w dovising tue income oi tho
entire estate TO one Lzzs Barton Taylor, only, how
ever, proyiaed she remained Unmarried; but ~ she
married The dcvse 10 be cut Oh the property to
remain complete abcyance until sue died, ana theu
II sue eit children surviving tho property 10 Uc gwen
10 SUCH cnidren but u she died ushouL children sue
was 40 w buii.d IN the same plot MIN III Green
wood, anu then tho whole estate devoted 10 dec
ing their graves Jndge Barrett set aside tue
tire wii as bsinl VOID abd impossible oi-cxecuop, cx
ceplhg the provision CIV ng 10 MISS Taylor the income
until sue MARI cd, ana holding tbat the pianll who
Is negro and q nat brother OF John D. Lewis ana
Mary Smith hs hall sister, are entitled as hers-at-
Mw 10 the estate, subject to the devise oi
ho income To Hiss Taylor until sbe MARI cs On tho
question o the settlement ot the findings Judge Dat
trnhoeier and .. A. kunter appeared for painuG
Auolpn Sonscr Tor Mary smnh, stirling & Houcn ior
the executors, > r. Hart anu Don A. Hueet for Aiss
Iayior Is nlamln +. Dunning for OF tDo icga-
ecs al ex-Judgc Jones or other parties claiming to
bc Interested The question OF allowances counsel
was reserved until after the lna disposition of tho
case