The sun. [volume] (New York [N.Y.]) 1833-1916, 1902-02-08
RULES AGAINST THIRD TRACK.
NINTH AVENUE ELEVATED HAD
NO RIGHT TO LAY 1T.
The Appellate Division or the Supreme
Court So Holds, but the Track VIII
Remain I'm Use Pending Probabl
Appeal TO the Court OF Appeals.

The construction Of the third track on
the Ninth avenue elevated road from Four
teenth street to Hath street, on which ex-
press trains are run, was held to be unau-
thorized by the Appellate Division OF the
Supreme Court yesterday in a suit brought
by Henry b. Auchincloss in 1891 to prevent
the construction and operation Of the third
truck before his premises on Columbus
avenue between Seventy-eighth and Sew
| enty-ninth streets. Injunction does not
issue on the decision, as the court orders u
new trial, where the injunction would per-
force issue. The case will now probably 20
to the Court Of Appeals, while the third track
is left In Use. :,
The suit was begun while the third track
was being put in and the court says that'
even il the company had the right 10 Jay
IL. Mr.. A~uchincloss was entitled to an IN
junction until his easements In the street
had been secured by the road. In such
an application for injunction the court
could award da mages requiring that the
Injunction would issue IL the damages
were not paid.
The lower court had dismissed the case,
holding that the plaintiff had not shown
that he was damaged In his easements
The high court says that he derived no
benefit from the passage OF express trains
which run without stop from f1fty-nlh'h
to lleth street, as most of them do.
The opurt then considers the point as TO
whether there wa authority to lay the
third track. II the company had no such
authority the injunction would be absolute
and not in the alternative of payment or
Injunction. The company at it's organiza-
ton in 1875 was authorized to AXE over
the rights OF the West Side and fonkers
Patent Railroad Company, organized IN
Iss7 The act of 1875 purported TO give
power to the company to build such ad-
ditional tracks a. might be authorized py
the commission appointed under the ACT
of 1857, whose powers were contilueu Wy
the act Of 1875. The third track was author
lied by this commission in 1894, AFTER the
present suit was brought.
II is held that the act of 1875, so Tar as IL
purports to give the defendant the rlght 70
Law additional tracks, conflicts WIN the
provision Of the Constitution when went
into effect on Jan. /, 1875. forbiddlng me
Legislature TO pass a private or local OH
giving such a franchise right to a corpora
ton. The railroad company had got a
decision of the Supreme Court in 1894 IN a
suit brought by the city that II had the right
to Law this third track. but the Appellate
Division says this amendment 10 the Nohs
s%titution was not called To the attention 81
the court. .
In dissenting in part Justice O'Brien said:
In view of the public utility of the, third
track and the fact that ten year. nave rinbsedd
during which IL has existed and bereitcd
those using the road IL does not seem 10 me
that any useful purpose could ne ~erNeu
Durticulurly where all the damages thdt
the plaintiff ht- suffered may be fNed ana
to give what ! regard - a forced
construction 10 the CONSTITUTIONS pfoNl-,on
which prevents the Legislature from passing
"A private or local bill granting to any corpora
and thus extend the provision 10 u ga" liz"
thi-, where the advantage resulttng 20 the
pliintin from the removal OF III. third track
M this time would he small. and where ~'ri-
Gus and lasting injury would be thereby
inflicted, not only upon the railroad, but
more ESPECIALLY uudn the travelling public.