New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1886-06-18
THE O'BRIENS HECKMATED
A sHREWD MOVE BY Mr.. LACOMBE

THE QUESTION OF TIE FRANCHISE.
Corporation Counsel LacOmbe yesterday took
the his hands with regard to the Broad
way litigation. The relations OF the Corporation COM
sci and the Attorney -(enersl havo been somewhat
strained suce the took the position
that Receiver OBrlen the man who had control
OF tho franchise He had brought suit before
Justice Parker Kingston enjonng tho Seventh Ave-
nue. road. and he thought both actions should he
merged. Mr.. Lacombe thought that the receivers suit
should the tics, rails ETC., OF the Broadway
road, which tho Seventh Avenue Company should not
use without paying for them Bat his action concerned
its OF the franchise which now belonged to the city
Tho officials could not agree. md Mr. OBrien pro-
cured from Judge Parker order requiring the Cor
porn,ion Counsel to show tomorrow at Kingston
why his suit should not DO merged into the receivers
Mr.. Lacombe prepared to make q counter movement
The papers he had served the Seventh Avenue peo
pie returnable on Tuesday. lie quietly procured
from Justice Van Brunt Tuesday order req urng
tho defendant company TO show cause why II
should not argue tho injunction at yesterdays
session. thus totally defeating the object ofthc Ator
ncyGenoral. At the opening OF court yesterday Ehu
Root and James Carter were present and said 1t ma
no difference to them whore they arsael. Tho judge
said they should 10 shcai In speaking OF hi, reasoas
for making this move, Mr. Lscombe said
applied for an order to sho cause why tho njunc-
for stay at Cisk because feared that the oppor-
unity for delay AMI evasion on the part OF tho Broad
>
concerned would be increased by the proceedngs OF
stay since was understood that was tho intention
OF the receivers counsel 20 stay the clty's su tho
statement has appeared In on" or two papers credited
ad o or ns they have had Of
they only knew who the to TO- but that 1t
money and therefore it was thought better to wait"
1t seemed eminenty proper that so far as the cty re-
concerned irrespective OF any question to the
rotations Of the receiver TO- the roam an cary adJudea-
IN way possibly affect any OF the receivers legal
rights
Mr. Iacombs addressed tho court In support of the
motion for injunction. lie said that tho theory OF
the city that since the constitutional amendment.
three things must be united IN the holding before
the holder is entitled to operate road IN the streets Of
the city. These capacity u operate railroad Ia
that locality which Is given by the Legislature. and is
franchise permission exercise this capacity!by opera
ing railroad locality. which must be given.
by the Legislature. but by the local authorities, and the
pr0perty-owne.s Supreme Court and the mechanical
cOntrvances necessary such operation The seventh
Avenue Company docs not pretend to have any capacity
operate In Broadway b. reason OF its own charters
IL derives all its rights from the Broadway Surface
Railroad, under its rements and under them Ouly
The city contends that such agree neIts were void 40
iaiiio being intended give right to a company
authorized TO run upon the route OF the Broadway
surface road, and also being In effect lease to com
pany operating parallel road II also contep IS that
such arran gements could not convey more than the
Broadway Company had itself the right to enjoy Under
It's charter It's enjoyment OF tho capacity franchise
terminabe 40 the will OF the Legislature The capacity
franchise has been so terminated by the acts OF 1856
Finally Mr. Laccmbc urged IN response to the sugges.
ton that the motion might be opposed on the ground
that the travelling public will be inconyenenced by the
interference with the actual running OF the cars That
there is other remedy for the city for the continual
invasion OF It's rights the motion snoud De granted
cned to continue the motion upon the ground OF public
Inconvenience then all that The law now gives the city
hond he secured TO it, The city should $4,000
for the to and the percentages actually earned
during each period such terms would IN no way inter-
cre with any legal right or to insist upon
compensation for the use of the tracks $500,
the first part OF the plaintiffs caim-that the Broad
way surface Company never had any right TO mako the
their roads were parallel He said that the right
derived from three contracts betwcen these companies,
passed before the act OF S35 aud the other passed
Ssraie rne re.tretons which were in the previous
acts The made after this act passed WAS
renewal OF the interchangeable clause In the previous
acts
SIR Carter argued that the requirement by the law
that road must be qualified 10 run over route meant
only thar II should DC organized aud competent lie
then took up the second claim OF the complanants.
that If the defendants mad right to run Broad
way they have none now Ia view OF the repeal or mo
Broadway Surface Roads charter and the return OF It's
franchise to the city by the legislature lie denied
enphatically that the LEGISLATURE had any power to
take away the annuled company property lie insist
60 Oh ne Oi "a r cern nnrpos
which called its charter ana the Franchise conferred
uona' AM the oTher lis nrylee to carry oa its par.
iaurc could take the corporate lite o.
any company Organized under its laws.
When the legislature revoked and ahnued the Broad
way Surface Companys it exercised It's nlnt.
and from that moment the company was dead
MIG, tade away mat properly. The
oaly question. therefore, ia whether or not this
OF property. II may be mortgagcd or Assigned. II
pas SEES Ia bankruptcy TO an assignee Ii was an OBJ ct
ofdcslre and was worta money II there was any SIN
gle quality a'Iac-ih5 ~ pIopeIy when n.d
The speaker dlI not know OF il; How
the franchise acquredi Wa It given by tho Iegs
ialurel Not at all That body having breahed tae |
breath OF lie INTO THIS corporation said to them. Now.
1ecessiiica you require ana deal with them" Tnat Is
what they nd. They went 10 The Common Council aud
The Supreme COur, FOX these consents. Heavy
actions we're required OF t u in th- nature OF rentals
and commissions. They PAID tie price of the fran
cc anG obtained Il In consideration OF the price paid
DOES tnat not roye II VS. property Mr. Carter pre-
scented decisions and lrecedrnts sustain DS THIS view
aAd claimed that having acquired OF the Broadwiy
Company toe privilege OF using THIS property. |
the - yenth Avenue Company was Left by the act |
rich, n r,ir ear in ro,Iv,v Inst AZ ,,rh -. II The r
cent legislation had never TAKEN place.
Thomas Allison. appearing for the city. replied to the
Mr. Carter to this issue II concerned
only the right OF the seventh Avenue Company 10 II
frafch,se when ala not belong TO IT, IL was not nor
necessary 10 sustain the Co. Oae thing WIS
certain; the Broadway Company could never have
road IA Broadway hai had no charier IL oou1 not
have harganed away the privilege to these people had
IL not received charter The legislature had taken
away the charter and nobldy denied the Legislatures
right to do that at least Having killed charter the
granting power gone, and the Seventh Avenue Com
psny must now give up right which 1t held by virtue
OF All authority that no longer existed.
Mr.. Root asked VINO owned the preserved consents
and IL the receiver should dispose them could the
company 70 purchasing them run IN Broadway Judge
Van Brant remarked that If these city
ana TINS consents "St sustained was hard to see what
and reserved his decision. To-morrow Mr. Lacouibr in
obedience to Judge Parkers order wiI 20 20 Kingston
and tell why an action already completed SHOULD
stayed.
CHARMING GLEN ISLAND OPEv AGATy
June may be the month of roses, blt it holds