The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-12
THE COURTS.
Fernando Woods House and Stable in
the Light of Distractions.
CLERICAL LITIGATION.
Internal Revenue Tax on Deposits in
Savings Bank.

Michael eastman recently brought proceeding in
the Court Of Common Pleas for mandamus against
Commissioner Allan Campbell to compel him to re-
move certain distractions in Seventy seventh street.
and also certain buildings belonging to the city,
which prevent travel on the street and Eleventh
avenue. eastman it seems, owns some lots on the
northwest corner OF seventv-seventh street and
Eleventh The intersection of that street and
that avenue occurs. Judge Van Hoesen says in a
decision rendered yesterday. only upon the map for
matter of fact Seventy street ends at the
Boulevard md Eleventh avenue at Seventy seventh
street. All OF Seventy-seventh street between the
Boulevard the east and Riverside Drive on
tho west, and all of Eleventh avenue, be-
tween Seventy-sixth and Seventy-eighth streets
are enclosed by Fernando Woods fences and used by
him as his private property. Cashmans house occu-
pies part of Eleventh avenue and his former stable
occupies part of Eleventh "The dwelling
house." Judge Van Hosen says. "and the stable.
though have called them his actually belong to
the city Of New York. which paid in 1865 $25OOO for
the house and In 1874 $500 for the stable. Mr. Cash
complains that he cannot get to his lots
without climbing Mr.. Woods fences opening the
gatns which Mr.. Wood has put up in Seventy seventh
street and in Eleventh avenue" Hence the present
application. The Judge in his opinion goes on to
sayIt il admitted that although actually closed to
The public, the street and the avenue are public
streets of the city of New York. but the
Common Council has never ordained that
they shall be graded, curbcd paved. The Com
missioner Of Public Works is charged by law with the
duty of removing distractions from the streets and
Of course the gates and the houses distractions
They were placed in the streets by the hand of man.
and the duty of the Commissioner with respect to
them Is altogether different from his duty with
spect to rock other obstacles to travel not placed
upon the soil by human agency If mass of rock
deposited by natural causes blocked up new street
which had never been worked hardly think that
without some action on the part OF the Common
Council, the Commissioner would be compelled to
remove 1t as obstruction. 1t would not, in my
opinion, be an obstruction within the meaning
or the law. But have already said
distractions. and admitting them to be So the Com
missioner in his afidavis, gives the following
for not removing them Seventy seventh street is
apublic street in name only, and by reason OF the
irregular surface of the ground. which rises abruptly
the westerly line Of tho Boulevard. it is imposs
bic to pass over the same with vehicles and the
street cannot be used thoroughfare for public
travel. For the aforesaid / have refrained
from interfering with the fences and structures
thereon This sworn statement of the Commits
sioner is not contradicted or questioned by Mr..
eastman. and therefore bound to accept it as in
dsputable. II Mr.. eastman had denied the Commits
sioners statement and alleged that the street
lay along gentle slope, which formed
an elegant lawn. issue of fact would
hav6been raised that might have been passed upon
by the proper tribunals. But it is admitted that
west of the Boulevard the ground is irregular and
the rise abrupt that it cannot be used as thor
pughfare for public travel am forced to consider
whether it would be proper to command the Com
missioner to go to the labor and expense of removing
the gates and the houses when after he has done
the proposed street will be utterly impossible To
that question there be but answer. The
granting of mandamus is discretionary, and 1t
would be abuse of discretion compel the doing
of act which would involve great expense and
which would be of no earthly advantage when done.
was urged upon the argument to decide whether
the Commissioner obliged to remove an obstruc-
ton in street which the Common Council had not
yet ordered be worked and prepared for travel but
1t is unnecessary at this time to consider the ques
ton shall deny the motion for mandamus but
without costs"