New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-05-19
AGAINST A TRANSIT PLAN.
THE METROPOLITAN COMPANY DEFEATED.
TWO DECISIONS OF THE SUPREME COURT GENERAL
TERM AGAINST AN ELEVATED ROAD IN BROAD

TWO DECISIONS OF THE SUPREME COURT GENERAL
rrpN AGAINST AN ELEVATED ROAD IN BROAD
WAY.
A decision was rendered by tho General Term OF
the Supreme Court yesterday reversing the order maae
BY Justice Donohue, at Special Ierm' appointing com
mssioners TO determine the amount OF compenss 'on
n IN maid 10 the city for the Of the streets pro-
nose "a be travcrscd by the metropolitan Transit Com
uanvs railroad The application Of the company for
the appointment Of commissioners of appraisal IS de-
MED Justice Macomber, who wrote the opinion,
saws Il was an TO exclude evidence showing that
the company IS not in condition to complete It's roaa
after already waiting fifteen years before doing any
thing. He continues:
Goa ,s,h is AN essential olement in granting petition
a, this character Otherwise would be lending
themselves 70 speculative projects Of gentlemen who
IA asceraned by inquiry through commission what
money they expend for right OF way may thus be
enabled to sell rights negotiate tho stock and
seturtes
Tho Judge declares that for the error In rejecting
the testimony referred to the order must be reversed
He gives other why, in his judgment, the Pet
ton should not have been granted saying that II
they are correct they Will do away with tho necessity
of new trial. He says further:
II cannot DO permitted petitioner under the guise
Of constructing railway under its original charter TO
occupy portions of the streets in the City OF ork
which. the Constitution OF tho Stats IL Is requrea
first to obtain the consent Of majority In value OF the
and the Of the authorities OF
the city.
He declares that the failure to do this is violation
of the amendment to the Constitution passed IN 1874
prohibiting tho construction operation OF street
railroad in this city except this condition In his
opinion an atemptihas been made 10 evade TINS con-
slitu,ional prohibition. He goes on:
The right complete the railway permitted by the act
Of 1872 carnot the OF 1881 be enlarged so as
70 give n effect this corporation right TO lay Its
trscks where possess that right prior to the
constitutional prohibition
He declares that In no sense can the broadway por
ton Of the streets covered by the maps Of the petitioner
be deemed a branch of the main line which IL was
authorized to construct.
In the suit in which Robert Goelet and others sought
an Injunction to restrain the Metropolitan Transit Com
pauy from building an elevated railroad In Broadway
and other branches alleging that the road wouu Do
nuts ance and especially complaining OF the branch ID
connection with the Grand Central Station, demurrer
10 the complaint was ntcrposed at Special Term OF
the Supreme Court. IL was based on the grounds OF
msioncr of parties and of nsucency OF facts stated
10 constitute cause of action. An appear was tahoh
from decision sustaining the demurrer, ana me Cen
cra Term yesterday reversed this judgment with costs
and overrucd the demurrer with leave TO the company
TO answer on payment Of costs. 1t was claimed by
the plaintiffs that the company never constructed Us
main line required by law and that II had pfacil-
cally abandoned 1t and had no means 10 carry on the
work.