The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-06-27
NOTES or LHaAL ETExrs.

inc Eighth Avonuo Trancnlso cases, nVolV-
ing tho right Of the Metropolitan Street Rail-
way Company to change the railroad on Eighth
avenue to an electric underground trolley line,
were argued before the Appellate Division of the
Supreme Court In this city on Tuesday. These
cases we're heard at Special Term by Judge
Miles Beach, who decided in favor Of the
Metropolitan Company. The plaintiffs con-
tend that under the original grant for the con-
struction Of a street railway on Eighth avenue,
the city retained the privilege Of itself acquir-
ing the line whenever 1t was willing to pay the
cost Of construction and 10 per cent additional
to the owners; and they insist that tho city
ought to avail itself OF this option. instead Of
allowing the Metropolitan Company to alter the
motive power for its own benefit. In behalf Of
that corporation, the alleged right Of the city is
strenuously denied. On tho appeal the plain
tits were represented by Mr.. Wheeler II. Peck
ham, and the defendants by Mr.. James @. Car
ter. Briefs were also filed by Judge Robert
Earl, lato Of tho Court of Appeals. for the appel
lants, and by Mr.. Elihu Root for the respondents.
Some surprise has boen expressed that Judge
Earl should appear as counsel in this or any
other case. He Is receiving $l2, 900 a year
from the State as a pension, and under the Con-
%stitution can be assigned by tho Governor to
duty as a Supreme Court Justice as long as he
continues to receive this pension, II he only re.
quests such assignment. II no is able to do any
work as a lawyer, 1t would seem as though he
should serve the State or relinquish his COM
pensation as a retired Judge.
Tho spirit in which Commander Booth-Tucker
Of the Salvation Army accepted tho suspension
Of sentence upon his conviction for maintaining
q nuisance at the barracks in West Fourteenth
street suggests considerable doubt as to
whether the immediate imposition of a sub
stantial fine would not have had q more salu-
tary effect. The defendant was manifestly re-
luctant to avail himself OF the leniency OF tho
court and did so only under the constraint Of
his counsel's very positive advice. OF regret
that he had violated the law, we find no indica-
ton whatever. Judge Newburger In refusing
to allow the Commander to play to tho gal
lery" by making a long address, set a praise
worthy example to some of his colleagues on
the bench. In one Of the reports Of the case we
observe that Mr.. A. Oakley Hall said that in
spite of suspension Of sentence he would appeal
in order to get a ruling on the law" Is it clear
that an appeal lies under such circumstances
The general rule in criminal cases Is that there
must be a Judgment pronounced upon the con-
viction in order to warrant an appeal.
The execution of Giuseppe Constantine at
Auburn on Tuesday, for a murder committed
at Utica in January, 1896, was not a very
striking illustration Of the superiority Of cleo
tricity over other methods Of inflicting the
death penalty. Five separate shocks had to be
administered, and instead Of tho instantaneous
death which this system was always to pro-
duce, q period OF eight minutes was required
to kill the criminal by means Of the electric cur
rent. Somebody appears to have been to
blame for not having the mechanism and appli-
ances in the proper condition to act moro
speedily; and the Superintendent of State
Prisons should see to 1t that tho person thus
at fault has nothing more to do with electrical
executions in this State. We have anti
cruelty societies to insure painless death to de-
crepit, useless, or Objectionable animals; and
having undertaken to establish a merciful
method Of capital punishment for men, the re-
sponsible authorities ought to make certain
that it Is carried out.
Tho Sugar TFast cases at Washington have
terminated with the ~acquittal OF John w. Ma
cartney by the direction Of the court. If
Judge Bradley wa. right III deciding the o.hsr
cases in favor Of the defendants, he was clearly
right in this, but we do not see why In his de-
cision he referred to the fact that the de-
PENDANT was and had been for many years one
of the substantial citizens Of Washington" We
are sorry TO say that substantial citizens, both
in Washington and elsewhere. have been
known TO commit offences against the criminal
law. Judge Bradley also said that Mr.. Ma
cartney was now charged with the violation Of
n statute that had been disregarded 30 MANY
years and so far forgotten that it required a
decision OF the Supreme Court to determine Its
constitutionality." He distinguished the case
from that OF Mr.. Chapman by saying that the
statute had been read to Mr.. Chapman. But 1t
is a new doctrine that a person is relieved of
| cha nhltratinn y N atat,,ta 49,
happen to have read 1t. The courts have not yet
generally rejected the maxim that ignorance OF
the law does not justify one in disregarding its
commands.
An important decision was announced BY the
Appellate Division Of the Supreme Court in
Brooklyn on Tuesday relating to the right OF the
city authorities to destroy ponds and water,
courses on Long Island for the purpose OF sup.
plying water to the municipality. 1t is a famil
lar and well established doctrine of the law thai
an owner Of the soil may divert water which
Is percolating through 1t. and prevent such
water from finding its way into a pond or
stream upon his neighbor's land. Under this
doctrine the city of Brooklyn has insisted tina,
when 1t purchased land In Queens county and
sunk wells thereon for the purpose Of increas
ing Its water supply, the adjacent proprietor
had no legal cause Of complaint. even though
tnis hCuon Oh Inc city prevented the under
ground water from percolating into the stream.
and ponds upon the adjoining property, and
thus led them to dry up and disappear. Ii
tho decision to which We refer, however, thu
Appellate Division holds that the right TO cut
off and consume the percolating underground
water on ones own land relates TO the bene
fetal use of the land for some purposes fol
which the land can be used connected with
its enjoyment as land for the ordinary pur
poses of agriculture, mining. domestic use, Of
Improvement, either public or private" Il
does not extend to such a use OF the land Il.
contcmplate5 its employment by the owner To-
the purpose Of sucking dry the lands of all hi
neighbors. The opinion is written by Mr.
Justice Hatch of Buffalo, whose work In tn,
Appellate Division OF the Second Department IL
most satisfactory and shows an exceptional do
gree Of ability.
Mr.. Robert ID. Benedict, the well-known ad
miralty lawyer, recently delivered before tn,
law department OF tho Brooklyn Institute al
.llu... .y,I sNNyl.. n w "