New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1897-01-23
FRANCHISE SALE WAS VOID.
THE KINGsBRIDGE EXTENSION OF THE
THIRD AVENUE RAILROAD STOPPED.
. SALE OF MORE THAN ONE FRANCHISE AT
TIME. THE APPELLATE DIVISION DECIDES
WOULD FRtsTRATE LEGISLATIVE
INTENT-s2 100000 ALREADY
EXPENDED.


EXPENDED.
The Appellate Division of the Supreme court yes
to-day Alarmed with a modification the preliminary
Injunction granted by Justice Truax month ago
in the suit of the owners Of Christs fo'ei d. o'e
hundred a nd eighty -second-st and kingsprihge
Road restraining the Third Avenue Baiiroad COM
many from constructinG its kingsnridge eNue'Sio''
from the junction OF Amsterdam ave. ana o"e
hundred and-sixty- second-st .,,
The modification limits the Injunction 10 ioro,'-
ding construction OF the railroad IN front Vi .n'
n,oirtiArs premises on the ground that the acton
,s founded upon special damage TO the property
owner resulting from void grant anu ''e
nothing on this record TO snow 'ha' INV -,
the plaintiffs promises Will he ihte'ie'r' wy" -
,ear,rr I'D streets seven miles away. Inc ai'' III
ance Of the order OF Justice Truax Involves Low
- . ,o,ding by tho Appellate DIVISION 'iia' '"e
o.,orn, N sell the franchise by the eN'c"''o" -
question was invalid. and that the nIo ~
railroad Company acquired no risf' w 49,
onnion Of the Court Is written by JuSuoe 's
and concurred in by the other JUSTICES. 1t ' ' !
os conceded that an attempt TO ouiid '"''o
% x,,t(,c' highway without authority is null
- IVA that the city of New-Nork mas 10 III
berent right Independent OF Legislative pc ,,i
n grant franchise for constructing anu ma -, =
ing q railroad in the public streets w ..,,r-
franchise can he valid, therefore, II STAT
less Il was proceeded WIN III ~
by the Legislature 1885,, ..o,, m tho
r, ,,,oc,;on to the legality OF the consent 10 "e
,;n. ~ tho franchise that more thah one -
tension OF lines included IN the r
notice OF sale. and that the Guy no" - -,
under the statute sell more than one AZ '.'',
=, ,ho only affection passed upon by the 'o"' =,
which saws: 1.-THE extensions OF INES a'e - P -
from each other by an interval or more wa" " S
, mil, No othel company than the delehoah' mas
at nresent the right to operate the connec'i"s '
batveen them II il Is permitted 10 sell ~ o"" ~
two extensions which are hal mile apart 'n'''
is NO roaso, VIII at the same sale two extensions
canno- be nut up. % whicA should Involve '"c
rgbt n run the defendants road from its prese II
southern terminus to the Battery. and the other
the particular extensions which were sol" mere
II two extensions are sold at one lime ten may
he sold and the result. would necessarily pe th't
tho only bidder would be the corporation whose
railroad connected with each of the extensions SOLD
-, ono auction because no other road could afford
IN undertake. the building of ten detached pieces
of railroad which had no connection with each
of her except through the road OF n competitor, ana
which could not he operated by the same pant"
The statute in expressing the conditions on which
punicinal consent to the advertising OF fran ,hse
for an extension may he given. uses the singular
number The Cour, holds that 10 permi: ,he sale
Of more than one franchise At a time would frus-
trate the legislative intent by discouragng com
petive bidding and lessening the percentage the
cry TO Yesterday said that this decision OF the
Carr would b. an important precedent in all
future cases Of similar litigation Dorothy r.
christ and ca hcrne /. Reekman the plaintiffs IN
would damage their real estate. ana the testimony
Of ey G h % sheT
Tor the companies argued hat the extension. in
n 5,ra" G aons The Kngshrdrc Road 1t com
psined also. that the plaintiffs had neglected TO
snneai TO the courts until after the Third-ave
cnmnany had expended about 100000 on the ex-
tension.
An ,nnl,cation was made TO Justice Beekman. in
tho Sunreme Court. yesterday for the release
writ Of haheas corpus OF Frank Whitaker. who was
sentenced ny Recorder Gon TO three months in the
peni;entiary for malicious mischief on November %
Whitaker obtained a stay which operated for a
month pending an appeal OF his case lie lost the
appeal and now pleads that the month IN which the
stav was in force should be counted part of his
sentence The Warden refused to release him on The
ground thai the sentence did not begin 10 run until
after the appeal had been decided on December %.
Justice Beekman reserved decision
Myron Oppenheirn. behalf OF the Gien Print
ing Company. asked Justice Fltzsimons in the city
Court. Chambers yesterday. to punish George b Nc
Iellan the husband Of Pauline Hall for contempt OF
court on account Of his failure appear for
animation in supplementary proceedings to his
ability to pay bill for {l.7?s II was alleged that
when Mcclellan was served with the papers directing
him 10 appear for examination he said he could make
more money by going to Europe, and did not care for
denied this lie said ne had no intention of being in
contempt. Decision was reserved.
An opinion in favor OF the defendant in an action
by John Mccarthy to s. 200 from the St Paul
Fire and Marine Insurance Company for loss caused
by the laundering OF the tug James u. Nco of
Sandy Hook In June 1894. was handed down in the
Supreme Court yesterday by Justice McAdam. The
Nico went down the Bay with fishing party o,
eighty-one persons on board. ank when she sank
forts-two lives were lost When Mccarthy. her
owner afterward demanded the insurance on his
boat, the company declined TO pay because the tug
WAS licensed carry only fofty-fiVc persons. and
there was clause In the insurance policy declaring
that the company would not he liable for any loss
arising from Overlooking any other violation OF the
Navigation laws OF the United States" Mccarthy
then sued the company. contending that The loss OF
ire Nico was due In any degree 10 the number
OF passengers she had on board. Justice McAdam
holds that it was THE tug" ne says started it,
errand A yioator OF the law and took the chances OF
all that followed The venture a bod one and