New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-01-16
BROADWAY STILL EXEMPT.
NO ELEVATED ROAD CAN YET BE CON-
STRUCTED THERE.
THE COURT OF APPEALS DECIDES AGAINST THE
METROPOLITAN TRANSIT COMPANY.
IBr TELEGRAPH TO THE TRIBUNE,

METROPOLITAN TRANSIT COMPANY.
[Br TELEGRAPH TO THE rnmuxE.I
Albany, Jan, 15.-The Court OF Appeals to-day
amrmed the order Of the General Term in the matter
Oh the metropolitan Transit Company which reversed
the order made at Special Term by Justice Donahue In
granting tho application Of the petitioners for the ap
| pointment OF commissioners to determine the COM
pensation to be paid to the Mayor, etc., of New
York. and appointing George W. Cutting, Robert L.
| Cutting and Thomas B. Musgrave to be such COM
missloners; and further ordering that the application
OF the petitioners be denied with costs. The pc
uoners propose TO construct and operate an elevated
/ railway In Broadway and other streets and over
private property, with sundry branches designated In
iuli In the petition. BY chapter s33, Laws OF 1872,
the petitioners were authorized TO construct and
operate an elevated railroad with double track along
certain specified routes. Among other points raised
by the city In opposition TO the petition the fact
that no proceedings has been taken under the Rapid
transit act and consents of property-owners nor
local authorities obtained, and that It was not
asserted that either the Of 1872 chapter $780,
Laws of 1884, constants specific direct grants Of the
right to use these streets
Judge Danforth wrote tho opinion. This holds that
the Judge at General Term erred in excluding the Of
ered evidence Of the city to show the inability of the
company to build the road, and other circumstances
tending to conrovert their expressed intention to do
so. The company must show under the solemnity Of
oath that It Is its intention in good faith to con-
struct and finish railroad from and to tho places
named for that purpose its articles Of association
The statute has In view main line and branches, the
whole accommodating the public over a largo ter
ntory. branch OF two Of these disconnected from
the trunk might be Of value to the owner but such
gift was not described In the statute, and there Is no
reason to suppose 1t was intended. II the act of
1881 was intended to give the company rights in
streets other than those named In the act Of 1872
1t could not stand against the Constitution, which
prohibits the construction of street railroad except
upon the consent of owners OF property and tho local
authorities or order OF the court. This excludes a
part Of as well as the complete, railroad, but the
or words from which an Implication to that effect can
be drawn. The order of the court below was ngnt
and should be affirmed.
appellant, against the New-York Elevated Railroad
Company and the Manhattan Railway Company, re-
spondents, judgment was affirmed with costs This
confirms the tripartite agreement and the distribution
of e26,0o0,000 Of stock OF the consolidated COM
panies
The order Of the General Term Of the Supreme
Court reversing the order made by Justice Donohue
appointing commissioners 10 appraise the compensa-
lion to be made to the city for the streets proposed
to be taken for the purposes of the Broadway ele-
waited railway Of the Metropolitan Transit Company,
has been affirmed by the Court OF Appeals. The
substantial question involved in the case was as to
the right Of the company to establish an elevated
road I'm Broadway, and the final decision on this point
has now been made against the company.
This company Incorporated In 1872. 1t was
authorized to build an elevated railway beginning at
Broadway at point opposite Bowling Green, thence
through private property Morrsst opposite Church
ST., thence through Church-st to Canalst, thence
through private property parallel to Greene-st
to Houstonst thence in brief along tho westerly side
of the city at least seventyve feet west of Sixth
ave- to the norherly side of thence
with curved line 20 point at least scventy-ve feet
west OF Seventh-ave. 20 Forty second-st and so on
10 tho Harlem River. This was TO be the main
route and the first branch IS described in these words
Also from a point south Of Forty-socondst, on and
20 connect with the line heretofore described eascry
and northerly to the Grand Central Deot at Forty
second st and Fourth ave.r It is under this ai-
thority TO establish branch TO the main line that
the company has claimed to have the right % es-
tablIsh an elevated road In Broadway from Chambers
St to Forty third-st.