New-York tribune., 1902-02-08
THIRD TRACK ILLEGAL.
THE APPELLATE DIVISION DECIDES
AGAINST THAT IN COLUMBUS-AvE.
PROPERTY OWNERS MAY CLAIM DAM
AGES FROM MANHATTAN.

PROPERTY OWNERS MAY CLAIM DAM
AGES FROM MANHATTAN.
In decision handed down yesterday by the
Appellate Division of the Supreme Court, the
right OF the Manhattan Railway Company to
have third track in Ninth or COlumbus-sve.
IS denied on constitutional grounds. There
probably Will be appeal from the decision
to the Court OF Appeals. but II the decision is
sustained, property owners along Ninth or Co
lumbus-ave. will be in position TO make claims
for damages. The decision became known In
Wall Street early yesterday afternoon ana
while Manhattan stock was not affected seri-
ously, IL dropped almost two points. and closed
with net loss OF seven -eighths of point
The suit leading TO yesterdays decision was
brought by Henry B. Auchincloss to prevent the
building of the third track for the elevated road
In columbus-ave., between Seventy-eighth and
Seventy-ninth sts Justice Bischoff refused to
grant an Injunction, and dismissed the COM
plaint on the ground that the plaintiff had not
shown loss suffered by reason of the construc-
Sion Of the elevated road IN front Of his prop
erty. The opinion OF the Appellate Division re-
verses the decision of Justice Bischon. 1t is
written by Justice Ingraham. and takes notlce
of the laws under which the elevated railroad
was begun in Greenwich-st. and Ninth-aVe, and
continued to Columbus-ave. 1t takes up the
under an act of 1875 could give permission Tor
the construction OF the third track After quot
ing provisions of the law and a part or q Court
of Appeals decision bearing on the law, tne
opinion says:
IT must be remembered that when the ACT OF
Tnent The oniy road constructed being small por,
lion OF road up Greenwfch-st; which conslS.eo
Goad 1 's'e tRs Ne%YOrk e O evaed RaToad c0mBaRy
acquired, and it was this road that the company
,rortenniated extending the Harlem RIVER
The experimental portion that they constructed
composed of one track 1t certainly cou!o M IOs
have been intended that this general grant OF power
would authorize this company to construct IN
Ninth-ave. or the avenue west of it. such number
wish and should obtain the consent of these com
rnissioners TO construct Nothing indicates that
such an appropriation OF several avenues 70 the
exclusive use of this corporation. limited only by
the consent of these commissioners was contem-
If the Court of Appeals its construction Of the
act had overlooked the provisions of Section o, to
which attention has been called. and IL this pro-
vision Is broad enough authorize the construc
ton by the elevated railroad company Of additional
tracks in Nnth-ave.. and if it is broad enough to
proved BY these commissioners then the provisions
would be in violation OF this constitutional provs-
ton that the construction of this additional track
IN Ninth-ave opposite the plaintiffs premises was
unauthorized and that the plaintiff was entitled to
an Injunction restraining the defendants from the
Ny associates are also Of the opinion that the
authority conferred by the act OF 1876 upon these
was intended to provide for the construction
road TO the Harlem River, and that when the road
was so constructed and completed the authority
or the commissioners TO consent TO additions TO the
road terminated.
The railroad company was required IN construct.
the road which II was authorized to build within
nNe years after the passage OF the act, and any
approval OF the commissioners after the five wears
had EXPIRED would seem to be unauthorized.