New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-12-26
A LEGAL PARADOX
a SCHEME OF THE ELEVATED ROADS.

a SCHEME OF THE ELEVATED hoAD''
GAZING ONE POSITION IN THE TRIAL ooo"i0
AND THE OPPOSITE ONE IN THE oooH1
or AppEALs-THE MoMENTous CON-
SEQUENCES OF THEIR SUCCESS
x,r.o,d,nary phase of the elevated raiiroA" IL.
.~.uon was developed in the case OF rou 49,.
~. Metropolitan Elevated Railway .omP"". NJ.
v.s submitted to the Court OF Appears ias' ~.
.,on u.as brought on the common Ia" sue VI Wv
-. % ,.covcr damages to premises at Mscoous"i
- w., Third sta because OF the elevated railway
.v..-.,As In West Thirdst A jury trial was ""''o'
ana after hearing the testimony Jusnce n"o"
49, r,.,n,,g judgment for So 500 being the permanent
s.mscc The question presented ociore INC oo %
Arnea,s was whether in common Ia" ao1o" Guy
additional damages than those sustained op ~ ~"
,.ncemcnt O. the action be recovered ana "hc'e
~, ,.In,,s would not be bound to institute an equity
.c,,on an o,,er 10 obtain permanent damages
Tho remarkable aspect of the case does not he III
any Of the above facts, but IN the a'u'"oe VI "io
n.rties toward the controversy. upon tne s"@oV
a. the Court of Appeals in what known Is tho UNIV
-ase and other opinions Of that court, nearly al
Of the many actions against the eieVa'eo r~ito'"
comnanIes for damages sbutting owners have been
xrb, pnon the equity side of the court. The plain
,,r in hes. actions upon the theory that the railroad
comnanjes are continuing trespasser and MAINTAIN
nuisance deprivng the owners OF their ease"c'e "
,cht air and access from the street, demand tuds
ments for ipjunctions restraining the running =" VI"
roads or in the alternative that the companies pay
the past and future damages In the Uhne case !"
u,s decided that II a common law action is Drought
can only be recovered UP to the time OF the
commencement OF the and that permanent damages
eould only be obtained by an equity acnon.
This Is consistent with long line OF previous oo-
s,o,s II Is OF vast importance that the rule should
he maintained, because many OF the most important
elevated railroad suits have already been decloeo'
and thousands in process Of litigation upon 'na'
theory But in the face Of these decisions the
counsel FOR the elevated railroads have perststenty and
stubbornly contendcd that such equity actions would
not lie At the beginning Of every trial tho pa'nuns
have been by motions to dismiss tho equity scuohs
on this ground and the motions have been argued ~
~ great length and deliberately by the railroad at
tarneys as the Judges would permit. During the
present month no less than seven such motions In Is
many cases have been made, and even at the time
uhcn one of the railroad lawyers was arguing the
Pond case in the Court Of Appeals, taking enc view
OF this question, another member OF the same MN
was arguing the other side of the question IN sho'her
suit on trial before Judge o'Gorman, in the superior
Court, and within the same week before Judge BOOK
siaver.
The Pond case as presented to the Court Of Ap
meals seems to have been made up with great skill
so far as the purposes of the elevated railroads were
concerned They apparently bound TO get
victory cut OF the case whatever the judgment may
be. If IN uniform line OF decisions to the present
time in favor OF the equity actions is followed, this
Will nominay' be adjudication in favor Of the
railroad and the companies viii at last be able to
point TO one decision Of the Court Of Appeals re-
ve,sing a Judgment against them. Whereas II the
singular position of the plaintiff is maintained, and
the Judgment against the elevated railroad companies
IS affirmed. the ground that the Uline case does
not apply while this would nominally be a judgment
against the railroad, II would In reality be a grea'
victory 90. The companies, and would be worth hun
drcds OF thousands not millions, of dollars to them
IL would only enable them to reverse all the I'M
porani Judgments for hundreds Of thousands of dol
lars alr,aly rendered against them, and now on ap
peal. BIZ; Il wculd render useless the vast amount oil
labor has been expended upon the great NUMBER
of pendins and untried, and the companies
would COntend that IL required new actions 10 oe
brought de Moreover AS past damages can only
lie roOvercd ior the sin years next preceding the DC
ginning OF the action, all the damages accrilhs ioi
the time these equity actions have been pending wouio
in such be lost.
good fortune could befal the elevated railroad com
ianlc than that thcy should be beaten upon the con
before the Court Of Appeals. Nor does the brief o.
the counsel Of the companies when sasmnea IN 30.
presented with the yeatning desire to persuade 'hs
court to adopt the defendants position. is a
modest little brief of less than nine pages, and while
1t does the Uline case, 1t makes nothing more
than the most cdsudi fcltrcHCC 10 tno 'o.V
or the Henderson case, any of the other CHIEF
authorities upon which the Jurisdiction OF the equity
rspeaedy had ciIcd TO him by the Judges of the lower
courts before whom he was arguing on the opposite
On the Other hand the counsel for the railroads must
have felt gratifed to with what shrcwdness the
@enrs BY " which the companies have vainy sOush,
TO wlcst The decision of these cases from the equity
clear case Of tails win heads you LOSE
sr the Se e1n pSes . hs nca
Win great victory there is little likelihood thai
81 Will be successful and that the hundreds, perhaps
in he s%Sy OF do aGa ssa RF g e
upon the shoals Of conflicting adjudications In the
Of Appsss has foOwa S unom and
of reasoning which has come 10 be considered
Of this State. The only Danger would be that the
Court OF Appeals because Of their confidence in Justice
Barrets thoroughness and knowledgc of the law, and
percevins from the reports of the case that the Gen
cra Term. In affirming his rulings were following the
Of the Arguments that have repeatedly been presented
before them by the counsel for the railroads. might
below had done without detecting the purpose Of the
defendants.
Of The case at General Term tsS Hun, 500 tha
this question was not even argued before that court
opinion Tho issue therefore which was presented
herein 20 the learned Justice presiding at the tria
was whether the defendants structure and its us.
Others belonged the plaintiff and diminished IT,.
So far appears the only other question mentioned
against both railroad companies The whole purpos'
TIE sblful for the railroad company TO turr
an afirmance Of the General Term Judgment agaips
them into means of throwing thousands Of othe
moro important cases out of court.
WHAT POLICEMAN STRUCK HIM9
Alexander sittcnberger. an unmarried truckdvve
twenty-five years old. who said his home at NJ
bod into