The New York herald., 1877-10-16
RAPID TRANSIT.
Another Victory for the Gilbert
Elevated Railroad.
THEIR STAY OF PROCEEDINGS GRANTED.
No Further Impediment to a Re-
sumption of Work.
JUDGE VAN voRsT's OPINION

After short but apparently thorough examination
pf the papers before him Judge Van Worst, oil the su
perior Court yesterday rendered the decision which s
r,yen below Oh the motion for stay OF proceedings
In the suit of tho Sixth Avenue Railroad Company
against the Gilbert Elevated Railroad Company whicn
was argued before him in the Superior Court 'ne
stay asked intended 10 reneve iho dcieaoans
from any further impeachment 10 an 'inmoo'a'e re-
sumption OF work and seemed to be necessary 0p ac
couns OF tho injunction granted by Judge Seds"isk
last June and when II was thought might place sonle
obstacle In the way Of the work, nowithssnang inc
recent decision Of the Court Of Appeals Tho following
isJudgc Van Worst opirion:-
JUDGE VAN yoxsT's OPINION.
This is application Tor a stay OF an proceeuinss
upon judgment entered Oh thu .3i DAY OF june,
1871 BY the Judgment the defendant is en)oiLea ana
restrained from building upon The Sixth avenue, in
the CITY of New York, from Amy 10 tuty-hmtn
street. the elevated railway described in the COM
plant .upon the plant mentioned and specified IN
The Judgment. The judgment also awarded to the
plantn S2le4 o. the costs OF the action A. appea,
has been taken by The defendant from the Judgment
the General Term OF TINS court ana the deienaaht
has given and undertaken upon such appeal 10 stay
the execution the judgment by the prov siohs OF
tbe former Code in force wien the appeal was taken,
the execution OF the judgment IN so lar AS directed
the payment OF money was stayed By tho notice OF
appeal undertaking tSections 33o und 3is ana ny
sections 327i, ,352 OF The present Codc Ihese ACTS
Of the defendant sccnred the same result
SECURITY APPEAL
Section 3I8 OF the former Code provides that an ap-
peal Goes not stay the proceedings uness security 20
gwen as upon an appeal the Court oil Appeals or
s.unless the Court or Judge thereof so ordereo 40
hnd any provision IN either Code winch enaoios
party appealing TO secure stay OF proceedings upon
Judgment awarding perpetual injunction oy giving
undcrtakins without tie order OF 'the Court OF
Judge thcrcoI." Section 35l OF tho Code OF civil
Proccdurc has respect TO Appeals General Term
that ''security not required 10 perfect
the appeal but except when IS s
tion OF judgment unless the Court 10 whicn
the appeal Is taken or Judge thereof makes makes
may be made, and may from time to time be modned
upon to security or otherwise as justice
requires The present application must therefore DC
regarded as made with respect 70 the upon
Judgment from which appeal has been taken, when
are stayed by ming undertaking Simply In pur
suaace OF some statutory direction but IS dependent
entirely upon order made by tho Court or Judge.
do not understand the counsel or the respohdeht
absolutely TO question tho power OF tho Court 10 grant
stay proceedings upon the judgment u the lacts
bc such as justify It's propricy. They d'd and wh
reason, contend upon the argument that no order
could be made by judge ut special Term 10 modily or
alter the judgment IN any respect NO ciain was IN
tcrposed by couuseor the appellant that such re-
suit within their contemplation. They disavowed
such Intention or demand.
now TO MODIFY THE JUDGMENT
The judgment must stand precisely as II was pro-
and entered. unless IL he reversed or modi-
bed the only way the law provides, and that Is by
judgment OF the Court on the present or any iutIre
appeal II has been decided in this Court that ON ap-
peal from order or Judgment granting Injunction
the Court may grant stay oil The responuents pro-
ceedlngs upon the order or judgment lGenin VS..
Chuduey, l2ih Abbott, CO. Holman, Jr, in That case
says:-"Ihe Court grant stay
terms is applicable to ot appeals from orders
granting injunction TO any orders and he adds,
'n Hirve against Soaring, IN this Court at General
fern, s'tne subject was examined and the power
recognized. 1t was held that when the
General Term had affirmed judgment for
perpetual injunction aud there MAS an appeal
judgc SPECIAL Term could grant stay OF proceed
ines pending the appealn Howe against Soaring, 9th
Bro, 6s4 The appellant claims 10 DC entitled 10 tho
order which 1t asks upon the steps already takcn-thnt
IS by the notice oi appeal and undertaking already
gwen But further support OF this applcat on the
ailantt hnuA hnnG
lately delivered by the Court OF Appeals in cases Of tho
Gilbert Elevated Railroad Company vs. kobbe and in
the matter Of the petition of the New York Elevated
Railroad Company. Ihese opinions iorn portion oI
the papers upon which This motion Is made. Tho
Appeals has swept away the ground upon
which the judgment IN thus action rested
Had been satisfied upon The argument
that this clearly l would have
deemed 1t my duty at once without any further
delay, TO have grant the order stay proceedings
No good reason could have Deen assigned why tue
order under such conditions should have been with
held The important rights OF the appellant u seems
TO me- would have justly demanded prompt order.
But as 1t did not then appear TO me 10 be entirely
clear that every right OF the parties adj udcated this
action had been passed upon by the Court oil Appeals
n delay rs limited as my engagement IN court would
allow seemed necessary IN which the papers could be
examined SO to ascertain what has really been do
cidcd by both courts
rug OPINION or JUDGE sEDewicK.
Justice sedgwck, before whom the trial at Special
Term was held, In his opinion tslst Superior Court
Reports 4oyj reached the conclusion that the RAPID
Transit intended to gvc the defendants clam,
upon upright columns In the middle o. the street. IT Is
In that respect unconstltutiona He thought II clear
upon the trial that the plaintiff suffered an injury pc
ruar itse IRON the OF the street threatened by
The defendant which entitled TO MAINTAIN actor
In its own name he says:-"Many other objections
were made based upon the statutes and upon the
stitut0n. A competent examination OF these aoulC
consume more time than has already been taken ant
nothing would be gained toward detcrminn,
practically The rignis OF the parties. Thes
ooIcctioDs were grave and important" Ho or
aered judgment Tor the pialntii, perpetualil
Judge, therefore, the conclusion reached was base,
exclusively upon the unconst utionaity OF the act o
the Legislature under which the defendant was pro
ceeding TO construct us railway IN Inc mauner IN
dcaed. 1t Ia true tnat the Judge does hnd IN pursu
ance oil what was pointed OUT IN MS opinion, that "a
row OF columns on each side OF Inc p!antils track
and in front OF ITS depot on the sixth avenue wou'
exclusively use ana occupy spaces In 'he street ina
plaintiff Is entitled to use Tor the purposes Oh ~
franchises; that the damage suffered oy tho plant
is peculiar to tse, and as owner In fe
OF land would also suffer damage pccu
liar TO itself by the in front OF ia
land being encountered by such rows oil columps thA
the consiructlon oil the road would occasion spcca
damage and injury TO the plantif In other rcspcc
mentioned by him. but the conclusions law reached
by the Judge upon the facts ound establish only that
the defendant had not any authority IN law 70 con
slruct operate elevated railway according TO tho
specifications, conditions aad requirements mentioned
in his finding oil facts that the act of The Legislature
under which the defendant was proceeding did not
authorize the construction and operation Of such
road: that the act Of the Legislature referred "a
by him did not constitute ana confer legal authority
to the defendant TO construct and operate ,he railway
he proposed to build IL VIII thus be seen that the
conclusions OF Judge Sedgwick upon which the Judg
ment rests, conform TO his views expressed IN hi'
opinion, 10 which reference Is above made, and ths
the juds ment as pronounced bv him and perfected
rests exclusively upon tho unconsuonaty OF the Law
under which tho defendant was proceeding TO builc
It's read As whether or not mo otuer matters In
yoiving the rights OF the plalniin and injury
10 ITS franchise and real property front
ing on the avenue through the construction
OF tho defendants raiway were suhcen
equity to justify restraint ci the completion % VA
work by perpetual Injunction the Judge ava not dc
eide The result reached with respect TO the othe
and principal question obyiated the necessity OF AM
adjudication upon that subject other than that III
plaintiff had standing TO maintain The action ~ J
iruc, as Is urged Judge sedgwck did decide that IN
proposed railroad oil the defendant would 10 pu0li
nuisance II built without authority OF law II woult
be clearly so.
REVIEWING THE corRr or AfPEALs' DECISION
The Court OF Appeals in the hrst ABOVE cite'
decides that the provisions OF The RAPID Transit &C
Intended Tor the benefit OF tue defendant are no
violation Of the state constitutions; that tb
changes made by the Commissioners from a tubull
railway TO DO operated "a whole in part by pneu
matte power, TO open railway 10 be operated ~
steam power, and rom structure by which The who'll
street was be covered 10 one By which portion
would not unauthorized by law