New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-05-11
Hall had gvou for over 100000 loaned to him were
brought ia evidence.
RAILROAD NE VS..


ELEVATED TRAINS IN FIFTY-THIRD-sT
JUDGMENT ENTERED IN DR. CARJs sUIT-THE Run
MING OF TRAINS TO BE STOPPED BY IFS ExEcU-
TON
Judgment was entered yesterday IN the
Superior Court in the suit began By the late DR. Salvatore
Caro- against the Metropolitan Elevated Railway Com
pany to restrain it from running trains IN
front OF his house in West Fltty-tnlru-
ST. The Judgment Is based upon tue
decision Of the General Term, which was rendered In
April 1880 and fled in February, 1881 Dr. Caro- In MS
compliant alleged that his house situated on pno-
lie highway In which he had easement that 1t shoul
be used for the ordinary purposes Of highway ana
should not be burdened by the con
strucuon and operation OF the efV'leu
rail way, which amounted nuisance by reason o. the
unusual noises made by the passing trains and the
noxous and poisonous gases and smoke projected on his
prem ses from the engines. The company demurred 10
the complaint, and the Court. al SPECIAL Term upheld
the demurrer. DR.. Caro- appealed to the
General Term, and the case was exhausuVey
argued by Benjamin f. Butler and Roger A Pryor Tor
Dr. Caro- and by John X. Porter and GrOsvenor r. Low
rey for the company. The position taken by The couhse
for Dr. Caro- novel, as they nam
tanned that the casting Of gases and Smoke
upon the plaintiffs premises amounte1 10 an actuai
physical trespass. the same as II tue company h4l
caused the plaintiff land TO be overlooked with water
The General Term reversed decision Of the Court
below
Dr. Caro- died soon after the decision OF the Cen
eraI Term was f.d and his heirs not
long ago revived the suit, Roger Foster be-
ing re aimed their attorney in the place
Of General Pryor The judgment flied yesterday reces
the proceedings the suit and orders that tine company
be perpetual enjoined and restrain from maintain
ing and operating ts elevated railway in front OF Dr.
Caro's house in Fiftythrdst
Mr. Foster the attorney for the present plaintiffs In
conversation with TRIBUNE reporter last evenings K
pressed 1snclnaton 20 speak Of the details OF tne III
gatiou. lie said however that the dsatn OF Dr. Caro-
terminating toe altorneyshp OF General Pryor In the
case he had been retained b. all the heirs TO continue the
action ae said he could say nothing to the cause
OF the delay in entering the Judgment on
the decision of the General Term III IaNor
of Dr. Caro- He only knew that since he had been re-
tanned the suit had been actv ely prosecuted, and ne
should press the final adjudication Of tie Court OF
Appeals rapidly possible. The order OF the Cen
era Term WAS not entered until last week, and then it
was dated back year Mr. Foster said that when he
desired jld yment this order on Monday
the Clerk OF the superior Court thought that
ought first 10 be signed by Judge, az II graned
equity relief He took it to Judge Russell. who directed
the clerk to enter it. Messrs Porter Lowrey. soren
stone, the attorneys toe Metropolitan Road, had
application To the Court for leave TO withdraw
their demurrer and put answer but their ap2hca
ton had b. en- denied
The Judgment as entered was therefore, absolute.
snoGid be executed before the appeal was heard
Under this Judgment the railroad MI Foster said, was
absolutely restrained from running trains In flfty-
thrd-st There nothing 70 prevent the plainnns
executing the Judgment 81 once and stopping
the running OF ali trains Ia front u tHe
Caro- house. Nr Foster declined 70 state whether such
ACTON would be taken He Denied positively that t1ere
had any settlement Of the claim between the Ee-
Railroad and Dr. Caro- his heirs he hal az A.
torney for administrator OF Dr. Caro- beg IN another
suit Tor $4,000 damages caused o. the Elevated Road
running line Of another house belonging ~
tue estate N Fifty-thirdst. -,
While hat TIE judg nent now staAd1 IN the
injunction may b. executed 50 ~ 70 stop
the opcraucn o. on tify-thrsL, dOcs nOt lO
the railroad comp could not prevent sucl
result. By hnng the proper Undertaking and appeal u
could obtain the execution OF the INJUNCTION
until the appeal heard aud dccdeL
Tue company Tor sIIAliaT
injuries viii heard the second time belofe tue
Court OF Appeals few days. There has already been
one hearing before the Court bat 1t ordered re-
argument Briefs will be submitted and arguments made
by OF the most eminent lawyers n the country
II the decision OF Story suit favorable To the pam
tifs the Court off Appeals the pla Nuns ia tne CSo
that will determine this sut IN tneir Ia
vor: but al Mr.. story it viii not be fatal
to Them they claim that their ID III several re-
.st. fr.ufr ap ri nan ne ~ her