The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-03-15
RAPID TRANSIT.
The Opposition 10 the New York Elevated
Railroad Company.
IMPORTANT ARGUMENT ON APPEAL.
A Horse Railroads Righteousness and a
Great Pubic Need.

The we'll known suit brought by the Ninth Avenue
Railroad Company against the New York Elevated
Railroad Company continues to drag It's slow length
along tho through the process OF appeals fol-
lowing each judicial decsion--a system Of appeals
which promises to DO kept up until the case has
reached OF last resort In the early proceed
nss all the leading points embraced in the complaint
and answer were fully given in the HERALD, together
With the main TESTING ny and argument at tho trial OF
the suit Judge Van Hoosen in the Special Term
OF the Court OF Common Pleas. The burden
Of the complaint is that the Elevated Rail-
road In the method and effect Of It's operation
il public nuisance, unauthorized by law.
and specially noxious and damaging 10 the horse car
line The matter came up for argument yesterday on
appeal from decision OF Judge Van Hoesen, before
Inc General Term Of the court Chief Justice Daily and
Judges Larrcmoro and J. T. DAILY being the bench
As on former occasions there extended retinue
OF counsel on both sidcs-Messrs. +. N Bangs and j.
n. Scrbncr, Jr., appearing behalf Of the appel
lauts, the Ninth Avenue Railroad Company, and
Messrs James Emott, A. j. Vandcrpoel and Edward
Q. Delevan appearing for the Elevated Railroad Com
pany. Substantially tho same points were raised on
both sides at the argument IN Special Term.
The FIRST pon, considered behalf Of the appellants
was us tho awuness OF the defendants structures
IN the carrageway In Greenwich street and In Ninth
avenue, below Thirty-fourth street; and the second
by the defendant in drawing propclling its and
tho method OF using It. Having discussed these points
1t considerable length thcre next taken up tho
uucstion of tho special relation of The defendant
plaintiff growing OF the fact that tho plaintiff is
Tho OF franchise granted by the State II was
urged that the grant oil the use OF the street in con-
structing operating railway necessarily and upon
familiar principles implied concession OF all that was
necessary to make the grant effective ana useful to the
pubic-such freedom OF access to the cars and Of
egrcss from them, and the use, place Of transit
and travel Tor man beast from the cars,
all the space tho tracks and the houses far
as such use was consistent with the right OF
the whole community Following this discussed
the question OF the special relation OF the defendant to
tho plaintiff growing out OF the location and Character
of the plaintiffs properly and business, and method
OF using its property and conducting It's business In
conclusion II was urged that Tie plaintiffs are entitled
have tho judgment reversed because Of errors OF
law in refusing 10 find material facts in ordance
with uncontradicted testimony and IN indns upon
matter OF fact IN opposition to uncontradcted testl
mony
THE CLAIMS OF THE ELEVATED ROAD.
On behalf Of tho Elevated Railroad Company there
followed lengthy and iorciblc argument aud reply
II conendcd that the defendants are corporation
formed under the general railroad act that they were
expressly authorized TO erect the structures, to
the means OF locomotion, and to build the switches,
turnous and connecting tracks which are complained
or by acts OF tho Legislature; that they we're organ
ized October 1871 that they became the owners of
the rights and franchises which possessed by
previously existing company. known originally the
West S,dc ana Yonkers Patent Railway Company
which had existed since July IS, 1866; that mis-
company was was authorized, 6y an act passed
railroad through. Greenwich street and Ninth avenue
TO a point above Fiityourth street The defendants
iustifj their and claim right 10 erect, maintain
ana operate their railroad -Firsl-under the grant
powers and franchises contained IN the act OF Apri D.
1867 aud thereby vested the West Side and Yonkers
Patent Railway Company, OF which corporation they
SUCCESSORS and assigns Sccond-Under the con
tnuanco ana ratification OF that grant and under tho
powers conferred upon themselves by the act passed
June IL 1875 II was urged, further, that the act OF
1867 authorized the erection oil structures Tor tho sup
port OF elevated railroad tracks along both sides
Of Greenwich street anu Ninth avenue from
the Battery to the Harlem RIVER; that 1t au-
thorIzed the OF turnOuts and connect
Ing tracks between the opposite sides OF the street
and Of switches; and that It conferred upon comms-
sioncrs whose appointment ana continuance were
provided act power TO designate the places
or points at which turnous and switches should DO
placed In every respect IL urged that the is
hard and ungracious The defendants, with publis
spirit and enterprise, had constructed rapid transit
road which had shown tho people OF New York how
that prime necessity Of their CITY could be obtained
Although situated on one sue OF the Island, In an out
o.the.way avenue, II had yet become SO great con
distance from It's road, that carrying
more passengers with its four stopping places
since IL was constructed, picked up while taking
dropping them all along the line. IL was not suit
by individual whose privacy was invaded or whose
comfort disturbed by unpleasant sights, sounds or
SMELLS or whose property could not be- used by reason
OF distractions. II was a nero attempt by u horse
railroad company, on grounds Of the most technical
character to break down enterprise oil great public
utility, simply because 1t was aapprehended that 1t
would interfere with IT'S profits. II contended,
conc uson that the Legislation under which they have
been acting valid ana constitutional, and their acts
In erecting maintaining and operating thor raIl-
road not Unauthorized or unlawful, that
Ihe plaintiffs have not shown that they have
sustained any serious substantial injury
from the defendants acts such as TO re-
Iuire or justify the interposltion which they
lsk OF the Court that every damage or injury which
Tho plaintiffs do will suffer IRON any Of the
complained Of Is of the same kind as that winch any
person using the street is liable to sner; that they do
not show any peculiar special injury TO themselves,
from act, which, II wrong is public wrong; that
The plaintiffs have seen the construction. completion
and of this road 90 alongside their own without
objection Tor months and years; that this silence is
ncquesccnce, Tor which the courts Will refuse the in
junction asked Tor and that therefore their complaint
was properly dismissed and that this judgment should
be affirmed. Az the conclusion OF the argument the
Court took the papers, reserving It's decision.
GREENWOOD CEMETERY.