The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-08-04
THE COURTS.
Interesting Question in a Street
Opening Case.
RESISTING PAYMENT OF ALlMOkY.


Corporation Counsel whitney yesterday prsse5tsa
to the supreme Court fer confirmation the rspori OF
the Commissioners OF Estimate and Assessment Tor
the opening OF 127h street. between Lawrencs street.
and Ninth avenue Various owners objected 10 the
awards and assessments made before the Comms-
sioners, but only six of those the heirs Of John Nc
Arthur appeared In Court In opposition 10 the con-
frmstion Their objections to the report present
question OF considerable importance the city aud
all owners OF land within the lines OF proposes
new streets In the year iso6 the village
OF Manhattanvie was laid out into eliy
lots fronting streets, one OF wnich
was designated Lawrence street In the year follow.
ing the Legislature appointed commissioners 60 lay
out the city north Of about Houston street. These
commissioners adopted the present parallel systsm Of
Streets and the LIST OF April 1911, hied their map
laying tho city far north as 155lh street, winch
map declared by the act OF 1918 TO be tns per-
manent map or plan OF the city. In the village Of
Manhattanviiie lots sold, however, by
reference TO the village map, aud IN but
few instances the streets laid out ~
tho commissioners recognized. About thirty years
ago John Macarthur purchased q lot fronting on
Lawrence street and sc,ed IL . largo store and
dwelling house. This lot, however,, nciudsd within
the lines OF Firth street upon the commissonsrs'
map of 1884, and It will DO necessary to take down
and remove the building In order 10 open the street.
1t was claimed before the Commissioners Of Estimate
and Assessment by the heirs Of Macarthur that pay
ment should be made by the city tor this building,
but the Commissioners rejected the claim,
for the that The mouse was erected
alter the filing OF tho city map The
provision OF the Street Opening act OF 1919, under
which the Commissioners acted, IS as Ioilows:-.lt
Innate and Assessment TO he appointed under and by
virtue OF this act, to allow any sum compensation
time subsequently, to the ding OF the APPS men,
toned In the NTH section OF The said last men.
part on any such street, avenue, public
square or place laid out by the said
tended by Mr. James A. Dsering who appeared Tor
the DIRECTORS, that this section provision OF the
to the constitutional provssoa. Nor snsH pr,va.s
property DO taken Tor public use without just
psnsstion" and that the Legislature BY attempting
TO prevent the award Of compensation Tor buildings
that eight be erected prevented the use and eujoy
ment OF tho land, without which the land was worth
less The Corporation Counsel argued that the Ming
Of the map conclusive; that the Legisiaturo
had full power 10 condemn private prop
commisslSSers ,ns. the net OF ISIS WAS cos..i,a
tonaI, ana that Macarthur, by building within ths
proposed lines, had done mis- risk ana
that his heirs without remedy damage dons
by the city Judge Daniels took the papers, reservng
his dc cis:on Is is SAID that this is the rs time the
constltutionality OF the act Of 1913 has ques
toned, and that Commissioners OF Estimate ana AS.
sossmsnt on the part oil the city have heretofore fol-
lowed 1t and allowed no compensation for buildings
erected within the lines OF proposed new Streets
APPEAL FROM PAYING ALlMONY.
johanna W. Miles time ago brought a suit fof
limited divorce against her HUSBAND Charles Miles,
charge OF cruelty. The parties lived at Flushing,
Long Island. The strongly contested. Elk.
Judge Busted Il Son appearing for she plaintiff and
Samuel j. Brooks Tor the defendant Finally the mat.
Thaddeus s. Lowe referee on the sub.
ject Of fee and alimony pendente lite His
port allowing the plaintiff SO alimony and $3.50
counsel fee confirmed at Special Term, and
appeal affirmed by the Supreme Court,
General Term. Application was made to
Judge Daniels for stay OF proceedings
pending appeal TO the Court OF Appeals. Judge
Daniels gave his decision yesterday, emboaying tho
during the peudsncy OF when tho delendant has
applied Tor stay to the Court Of Appeals from AN
order Of tho General Term affirming order OF the
Special Term, directing the payment OF certain
amounts for the support OF tho we AMI tho expenses
OF her action Tor separation during It's pendency.
In evory suit OF that nature has provided
that tho Court may In It's discretion require
hand to pay any sums necessary to enable the
wife to carry 1t on during its tendency. e Il.
s., ed, 239, ~ The authority by
And for that reason under numerous decisions
OF the Court OF Appeals, appeal from the order
exercising such discretion can be taken to that court
IL has also In express terms been provided by the
appealed 10 tho Court OF Appeals must be one which
does not rest In discretion Ii seems to be quite clear
that the Court OF Appeals cannot review the order
which In this case the General Term rmed, and
that no stay should be allowed for the purpose of
fruitess endoavor 10 carry such appeal. rhs
motion tor attachment because of the failure
pay the amount awarded m ust prevail"