New-York tribune., 1902-06-27
piRK-irE. TUNNEL CASE ARGUED
EDWARD NJ. SHEPARD DECLARES THAT LINE
OF SUBWAY Is LEGAL

NJ.
OF SUBWAY Is LEGAL
Argument presented yesterday before Justice
Giegerich on the application of Charles / Barney
for an injunction 10 restrain the Rapid transit
Commission from proceeding further with the con-
s.r,7-fon Of the Park-ave. section OF the rapid
transit subway. the ground that the route Oh
the tunnel had been Illegally changed by the chel
engineer Of the commission. so as to bring the
-nnnel within seven instead OF thirty-five feet OF
Tho l,,i!5fne line Mr. Barney's home at the north
east corner Of Thirty-eighth-st and Park-aNe IS
part Of the property affected While he is plalhuI
in this case, Mr.. Barney is also stockhoider ana
director OF the Rapid Transit Subway CONSTRUCTION
Company and Of the Interborough Railway Com
panv which IS TO operate the road. The argument
FOR the injunction made by Arthur H Masten,
Masten * Nichols.
Mr.. Masten asserted that an entire change had
been made ia the plans and location OF the tuhhel
between Thirty-ninth and Forty-second sts. under
Park-ave. without authority law. in abandoning
the proposed single tunnel under the centre Of the
street. % feet from the house line. He contelded
that the law required that such change in the
plans should be made by the board and confirmed
by the local authorities and the Appellate Division
The consent CT property owners Mr. Masten ar
gUed. had been based on the original plans The
Appellate Division had approved the route shown
in the first plans. He argued that the board could
not delegate to its chief engineer the power to
change the route OF a part OF the subway and
could not regard such a change as a mere detail
He said that his client mad been guilty OF ie-
lay in instituting his action the work this
section had been kept d dark and mysterious
secret and the departure from the original plans
had not been known until March y, when houses
began fall into the excavation
Edward Nj Shepard. il opposing the motion for
injunction. said he thought the court would
perceive that the interests OF the plaintiff COM
pared with the interests OF the public at large wec
small. He denied that the board had done any
thing Illegal in fixing the exact line CT this part OF
the subway He said he would submit afidavits
showing that the line actually followed WAS the
only by which the board could carry out the
mandate the Appellate Division in an amend
inent TO the original plans, that provision shoaid
be made for the future connection Of these tracks
with lines for the accommodation of East Side and
laterurban traffic.
What has been done by Mr Parsons has been
is any doubt the board yesterday ratified and
adopted what has been done
The section which il Is now sought 10 enJoll
Us from completing is nearly finished. and the
plaIntim asks that not only cease work on IL
buI that fill il This Will cost twice as
much complete it. and il cannot be safely
hlleG except bY something like concrete. We would
have abandon the whole section and do the
work all over and keep Park-aNe torn up Tor
fully eighteen months longer than il Will take 10
complete the whole work as it is now proceeding.
II Is Incredible 10 believe that the plaintiff wishes
the result which legal success on this application
would bring. Moreover. the plaintiff, If ne mas
Deen in way DANA ged. has an adequate rem
eoy al law in a suit for damages
A B. 8oardman said that the relief asked Tor
would leave the tunnel unsafe. whereas il the
work not, interfered with the masonry would
De completed IN months, and the houses would
then o. : safe If the excavation had never
been made
Counsel we're given two weeks to submit briefs.