New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-11-28
THE BROADWAY LITIGATION.
DECISION BY THE COURT OF APPEALS.
JUDGMENTS OF THE SPECIAL AND GENERAL
TERMS IN THE SURFACE RAILWAY
CASE REVERSED.


Albany, Nov. 81 (speciaD.--A decision handed
down to-day in the action brought b. Atcrney-Gcn
era oDrien in JUL. 1885, in the of the people
against the City Of York, John OBricn, receiver
OF tho Broadway Surface Railroad Company etc., TO
obtain Judgment declaring TIE rights and liberties OF
the several parties affected by the dissolution Of
the Broadway Surface Ralwa.. The went to
tho high court appeals. Today's decision
reverses the judgments OF the Special and General Terms
reverses the appeals Of defendants other than the
receiver and dsmisses the complaint with costs to
defendants appealing. Jndee Ruger wrote an opn-
lon of 1900 words. He says there is no reason sug-
eesed why all the objects of the suit could not be
attained in the action by tho Attorney General all-
thorized by Chapter 80. Tho people had no inter
est in the controversy and he airms the validity Of
the bonds prima facie. The statutes upon which
the action IS predcaed confessodly tho right
and power Of the Legislature TO wrest from the com
pany its franchises; to transfer them to other per
sons and bcstow their value upon the donces OF the
State. The statutes contemplate the absolute do
struction OF the property OF the corporation and the
loss OF it's values to the creditors who made loans
In good faith. Tho Title to the streets Of New York
vested the city IN trust for tho people of the
state, but under the Constitution and statutes It
had authority to convey such title as was necessary
for the purpose the corporations desiring to ac-
quire tho Same for use as n street railway. Tho
city had authority 10 mi- the estate granted either as
and also had power TO grant interest in public
streets for public in perpetuity which should DO
Irrevocabe. Tho resolution of the Common Council
expressly provided for traffic contract by which
the Broadway and Seventh Avenue Company should
obtain a right to cars over tho tracks OF the
broadway Surface Railway, and no condition upon
the right granted TO the Broadway Company was I'M
ported The opinion continues that the Broadway
Surface Railway Company took estate in perIetulty
In Broadway through It's grant from the city under
the authority of the constitution and the act OF The
Legislature. The repeal Of law authorizing copo-
ratons would not destroy organizations formed under
IT, nor would the annnlment of charter affect law
under which It was created. The statutes authorizing
the sale of the franchise and property of railroad
company on execution seem 10 recognize the indis-
soubility of the connection between the corporal
property and its incorporeal right of enjoyment
The Judges dissenting contended that
the reserved power could not be con-
strucd as authorizing the alteration,
visions Of grant but should be held 10 mean simply
reservation o 6' power 10 nrottso %
against legislation .mpairing the obligations OF ne
act changed some of the essential features of tho
contract. The InOadwsy Company took an indie
street railroad in broadway and run cars thereon
for freight and passengers. Tho main argument pre-
Of the legislature IS the assertion that the consents
do not constitute property within tho usual sight,
question say the judges, and do not agrcc with IN
claim The law IS unconditional also becarse II
makes proof Of the cost of the obligation the n uro
OF the creditors recovery instead of the liability OF
the debtor shown by the terms of his contract The
scheme by which Il was attempted 10 wind up the
affairs Of the broadway Surface Railroad Company
as the provision for bringing the action by the At
torney-General TO wind VI It's affairs incidental
merely, and Intimately connected with the general
plan OF the scheme that # cannot be supposed Il
would have been enacted except IN connection with
the other provisions Of the act The judgments OF
the Special and General Terms should be reversed
and the complaint dismissed with costs TO the defend
ants, other than the receiver