New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1897-05-21
CANNOT BUY THE ROADS.
JUSTICE BEACH DECIDES THAT THE
CITY's RIGHT HAS LAPsED.
IT Is NOW THRICE BARRED by THE STATUTE OF
LIMITATIONS. HE sAYs-THs EIGHTH
AVE. ROAD MAY ALSO CHANGE
ITS MOTIVE POWER.


AVE. ROAD MAY ALSO CHANGE
ITS MOTIVE POWER.
rustic. Reach in the Supreme Court, yesterday
decided that the city's right TO purchase III.
Eighth Avenue Railroad. under the resolution Oh
1871 by which the franchise was granted. no longer
.x,s,s md that the Metropolitan Street Halfway
Company may change the motive power on 'he
road from horsepower TO electricity Inc ci's
right to purchase the road, Justice Beach says Is
dead beyond hope OF recovery The motion ioi
fntunctons 10 restrain the owners Of the road from
changing the motive power on II he oehieo WIN
costs and he also declared that the citys boato
of Electrical Control had no Jursdicuon III ''0
case. The Eighth Avenue Railroad alone is men
toned in the decision. which. however pracuc"IIs
affects the questions Of the purchase OF ana chahso
Of motive power on the Sixth-ave. line Also
Tho 1us,,cea decision was given on motions made
bv Eugene clifford Potter. a taxpayer VINO Is ACT
ing in the interests Of Henry j. BraKer. 'he man
who has offered to tho city SoocWN ana yearly
income for each road. by Marie Elser. anu u!
Peter Roberts owners of property along the ihe OF
the Eighth Avenue road compheo "e""s
was held on the motions several weeks ago Inc
plaintiffs sought 10 restrain Generai T. II. l.
Coils Commissioner of Publio Works. from grant
ing permit 20 the Eighth Avenue road or Its
lessee the Metropolitan Street Railway Company,
10 change the motive power. and 10 restrain the
companies from opening the tracks now laid 10 DO
ne work requisite for the change which the State
Board of Railroad Commissioners has au'hori%eo'
LOCAL CONSENT NOT NECESSARY.
In the taxpayers action. Justice Beach says IN
his decision. there is no allegation OF lrauu oi
corruption the part of the muniepal autAof'ies'
although waste is alleged. The motion proceeds
on the theory that the change is unauthorized
He goes 10 ask lis the consent OF the ioca'
authorities needed for a change from morse 10
electric traction in the light of the conoluon con-
tanned in the grant Of September g. lS0l. 10 me
original grantees that no motive power except
horses shall be used below Fifty-frst.s! Inc
Railroad law OF 1892 he points out, authorizes the
Of any power approved by The state KadirG ,S
property-owners along the line. The manner IN
which an existing franchise TO operate railroad
may be exercseo.' ne says, is matter WITHIN
the absolute control of the legislature ., -.
AS 10 the question whether or not the Board Oh
Electrical Control has concurrent jurisdiction with
the State Board Of Railroad commissioners IN tie
and whether the Electrical Control Boards cOnseht
is also necessary or not. Justice Beach says: Inc
purpose Of regulatin all telegraph, telephoe ana
electrical light wires and ali electrical eohuH 9T
used for transmitting sound. heat and liSht Ihere
is nothing be found in the statutes conierrihg
authority on such Board to affect raliroads or te
motive power. The control OF the latter IL vested
in the State Railroad Commissioners, 10 Whoul IS
given the right to determine the character Oh mo"Ve
The right Of the city to purchase the rG raj 1
however by the terms OF The a ns o., con
stIucton. plus 10 per cent t>e Justice continues Is,
however. the main ground of contention. But TINS
alleged right has been ignored by the city and rail-
road company also for foriy-nne years. lie pro-
ceeds A.,
''The grant containing the original resolution fur
nished the basis for the contract Inc former nus
been repeatedly adjudicated TO be void and there Is
no reason why the contract founded thereon should
be subject to like fate. especially as II wa
omitted from the confirmatory clause in the Act or
1854 The one expired with the other, and both
grant and contract are dead beyond hope OF resut
recton. 1t is possible that the munclpaI autnoiI
ties might have had, years ago. STANDING IN court
assert some claim In equity under the con.ractt
although in what form of action, or for what renei
II such right existed. II is not clear Now the
right of the city is thrice barred by the statute OF
limitations"
Mr.. WHITNEY ON THE DECISION.
William c. Whitney, Thomas F. Ryan and John
D. Crimmins went 10 the ofice Of the Metropolitan
Street Railway Company. at Broadway and Hous-
ton-st yesterday afternoon, and talked over the
decision a copy Of which had been sent to the Of
fee. Mr.. Whitney said after the conference: III
our opponent, the Third Avenue Railroad Company.
really wants to have final decision OF the mat
ter, and Will take an appeal Immediately so that
the case can be argued before the Appellate Div.
zion Of the Supreme Court about me neginnilg o.
Sixth and Eighth ayes. this summer There is
real really nSfhs tfs his sson If the Ave-
nue. Railroad Company nights for delay in the The, aP
gin the work Of changing the motive power on the
railroads in Sixth and Eighth ayes until the appel
late Court gives its decision OF course. we are not
restrained now, but we do not want to take an I'M
fair advantage Of Judge Beachs decision
OPINIONS OF CITY OFFICIALS.
Corporation Counsel Scott said yesterday after
noon that he did 60 far as Justice Beach
did in his decision as the rights OF the railroad
companies but its effect would be 10 settle the
question Of the city's right TO acquire the iran
chises and TO sweep away the intunctions and per-
NIT the Metropolitan company TO go ahead Win its
improvements for the change OF motive power,
deputy Commissioner Howard Payson WIGS OF
the Public Works Department said that he was
gratifed to find the position of the Department SO
Thoroughly sustained by the decision. There was
now nothing TO prevent carrying out the companys
plans of Improvement
Mayor Strong said yesterday that, from what ne
had learned OF the decision 1t ended the cohtro--
versy as the city's right 70 take possession OF
the Sixth and Eighth ave railroads corporation
Counsel Scott" the MAY or said has promised 10
have a digest of Judge Beachs decision ready Tor
me tomorrow. When ] get II, l may nave some
thing more 10 say the subject
An opinion by ex-Justice Robert Earl. OF the
Court OF Appeals as the citys right 10 purchase
the Eighth Avenue Railroad. made public yester-
day, which in opposition to the decision given
by Justice Beach Mr.. Carl holds that the reaolu-
tions and agreements of 1851 made between the
company and the city survive, and nothing mas
since occurred destroy them NO ingenuity,
he saws will be suficent 10 satisfy any Court
that the right Of the city 10 collect license ices sur
wives and not the right of purchase -,
be astute to find reasons for defeating the just
right Of the city, under the plain terms OF its con-
tracts 10 secure without injustice TO anybody the
millions which these railroad franchises, otherwise
innproyidenty granted for nothing are WORTH
MADISON-AVE. RAILROAD HEARING.
~ -s,.4Nx v.1oy