The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-09-28
RAPID TRANSIT.

THE BALL OF LITIGATION MECHANICALLY
MovINs-wHAr WAS DONE IN THE COURTS
YEsTERDAY-AN EFFORT TO RESUME WORK
WITHOUT FURTHER LEGAL IMPEDIMENT.
TWAS generally supposed that the decision OF
the Court Of Appeals validating the charter OF the
Gilbert Elevated Ra. irosd Company and sustaining
the constutonaity of the Rapid Transit act would,
for tho time beng put quieIus upon the horse rail-
road men, who have thus far boon the most bitter and
persistent opponents of this much needed public i'm
provenent Nevertheless these men still continue
the contest with stubborn liberalization worthy a
better cause As already published In the HERALD,
judgment In tho Superior Court was some time ago
recovered by the sixth Avenue Railroad Company
against the Gilbert Elevated Railroad Company re-
straning tho latter company from constructing their
proposed road on SIKH avenue from Amity street to
Filty.nnth street, chiefly on the ground that the So
called Rapid Transit act unconstitutional Judge
Scdgwick who wrote the opinion in tho case, held
that the Rapid Transit act unconstt utona; but
In his findings no found specifically that the
Sixth Avenue Railroad Company would sustain
special damages by reason Of tho building
OF tho road. judgment was entered on his
findings and the Court OF Appeals is well known,
recently decided the RAPID Transi. be consiu.
tiona ana that the Gilbert Elevated Company has a
right to have property condemned to its USE
fore Judge Van Worst holding the Special Term tho
Superior Court form, to stay all proceedings
judgment until tho appeal which has been taken In
ths case rs heard and decided The object OF the mo-
ton, avowed by Mr. G. p. Lowcry counsel for the
Gilbert road, Is TO prevent any interruption by pro-
ceedings tor contempt under the Judgment with tho
building OF the road Tho plaintiffs in their argument
claim that the main grounds on which the injunction
was granted-viz the private injury 10 tho sixth
Avenue Railroad Company-bave not been passed
upon by the Court OF Appeals. and the judgment
should not be. therefore, suspended The defendants
that in spite Of The judgment In favor OF the Gil
bort road all the points presented in this case,
they. still restrained by this injunction IRON
carrying the contracts which they had
made and they arc certain that tho General Term OF
the Supreme Court will decide in their favor that they
have largo quantities OF materials coecon. and that
great inconvenience 10 them and the public will result
from the sloppagc OF tie work.
WHAT Mr.. BUTLER SAYS
Mr.. JOSEPH H. Choatc replied on behalf OF the Sixth
dent OF the company, Mr. p. H. Butler which recites
special damages that would be done TO the plaintiffs as
well tho injuries TO other property holders along
tho proposed route and insists upon the paintiis'
contract with the city, and renews the other argu
ments already ndvanocd principally tnat even II the
act was conceded to be constitutional, IL would be
imperative until damages to the property owners
appraised and awarded, whereas tho Gilbert Com
pany proposed TO construct their road without
even offering any compensation. The
pany say that they have real estate
sixth That ane q question SH
that any work done the Gilbert road until alter
the action commenced. and say II was not done by de-
ested parties who formed loan aud improvement
company and got contract from the Gilbert Com
pany for construction at 900 per mile whereas
the said loan and Improvement company contracted
with the Edgcmore Iron Company at $500, 900 per
mile This absorption OF tho profits of the Gilbert
Company would render 1t impossible Tor the properly
owners, II allowed, to recover compensation Tor
damages.
Mr. Lowery further stated that the main ground OF
Judge Sedgwick's decision was removed by the Court
OF Appeals, and they would apply within tow days
10 tho Supreme Court TO have commissioners ap-
pointed under tho statute TO decide the damages which
would accrue 10 tho Sixth Avenue Company from the
building OF the Elevated road The injuries, he said
could only DO the prevention Of two or three story
cars which had only recently been discovered to
valuable franchise.
Judge Van Worst, after further desutory argu-
ment, concluded 70 adjourn tho until next Tues
day consider the preliminary question US 10 whether
Judge Sedgwick should not hear the argument the
notion and also TO allow further aidavlts TO be put in
on behalf Of the defendants.
ANOTHER LITIGATION.
motion also mauc yesterday before Judge
j. +. DAILY, In the Court OF Common Pleas, the suit
OF the Ninth Avenue Railroad Company against the
Now York Elevated Railroad Company Tor reference
ascertain the damages to them by injunction OBJ
tanned by tho plaintiffs. The motion opposed
the ground that the application was premature. In
the Court took the papers, reserving deci
sir