New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1904-12-22
FENCE AID" FIGHT WON.
NAY AFFECT SUBW4Y.
Justice Scott Orders Defacements
from Bryant Park Boards.

BY i decision which Justice Scott in the Su-
preme Court handed down yesterday, in the
suit brought by Calvin Tomkins president of
the Municipal Art Society. against Park Com
missioner Pallas and Mcnamara & Hart, the
gaudy signs which beplaster the fence around
the library in Bryant Park are declared il
legal and ordered taken down.
The Tribune first called attention To these
signs. the contract for which let by Commits
sioner Pallas to Harry Hart. the we'll known
Tammauy leader gave to him for a nominal
privilege declared by experienced adver-
tising men to be worth ten times what he paid
for it, The Tribune urged that Commissioners
Pallas follow the example Of ex- Commissioner
Wilcox and order the signs removed, but he
refused 10 do this Public sentiment was
aroused. and Nj. Tomkins instituted tax
payers suit. which has ended In victory.
The decision Of Justice Scott, taking up the
right to use public property for advertising, Is
expected to have an iurortant be l.ng 'n the
subway sign contrc versy, not that the facts in
the two cases are parallel. but because the de-
cision in this case Will so clearly open the way
FOR the Mayor TO refer the subway sign ques-
tion to the courts, apparently with every chance
for a successful verdict. The opponents of the
subway signs feel that in view of this decision
there can he no doubt to the ultimate re-
moval of all subway signs.
The question at issue in this case. said Jus
tice Scott in his decision. was whether the Park
Commissioner had power to make the contract
under which Mcnamara & Hart plastered the
fence with 'colored signs of crude artistic de-
sign. so displayed 70 catch the eye and at
tract attention" He held that the Commits
sioner had only the power, granted to him by
the charter to care for the parks and any at
tempted use Of the parks park property not
y n
charter was without his powers.
The opinion went on:
IF the question presented were merely Of taste
whether not the advertisements We're ornamental,
obvious abuse interfere with the judgment of the
Commissoner' Bat no pretence Is made by defend
maintained for ornamental purposes. Nor is ii
the benefciai use OF the park by the people
Il is 100 obvious 10 require demonstration that
business advertisements painted on board fence
contribute nothing 70 the beneficial use Of the park
by the public The defendant Commissioner. then.
any statute. or by any reasonable implication. TO
and his attempt to do SO was illegal and void
His act Is not rendered legal because the fence
Nor is # OF moment that the city is to receive a
Tho parks are not Intended primarily as sources of
come legal tecause some Is derived from
conclude that the grant of the license to the
defendants Mcnamara 4 Hart was unauthorized.
Illegal and void; that the plaintiff as a taxpayer
junction should issue. restraining the defendants.
and each of them from using permitting the
use Cf the fence in question for the exhibition Of
advertisements, and requiring them 70 remove the
advertisements now displayed thereon, with SlO
costs Of motion TO the plaintiff.
This decision proves conclusively the Illegal
ity of all advertising public property" said
Mr. Tomkins last night. at bears out the
gumeHt of the Municipal Art Society that the
Park Commissioner had power to make the
advertising contract.
1t viii have important bearing on the
question Of advertising signs in the subway.
There the signs just much public
property those on the library fence The
Rapid Transit Commission had no more power
to EI1-t this privilege than had the Park Com
missioner. This decision opens 4 way clearly BY
which the Mayor may have the sig removed.
II makes 1t very easy for MIN to L,-Ve The Cor
pOIation Counsel bring he SAM Kind Of suit
which Mr.. Spencer. counsel tna t,unicipai
result would be no more In doubt -han the
suit was in doubt in This justice Scott'S
ruling has made 30 plain the importance Of this
action by the Mayor and showed so plainly its
result that We must h"pe the Mayor viii not de-
lay i'm taking advantage of his opportunities.
4 lawyer who has been in close touch in
the Rapid Transit Commissions views on the
signs agrees with Mr.. Tonkins that this de
Clslon VIII pro3aoiy open the way for q speedy
removal OF the signs, not because the decision
could be quoted as q precedent. for the facts
on when SilJ would De based in the subway
controversy are different from those which
Justice Scott ,crsidarad bur because this de-
csion. showing the spirit with which the courts
regard the appropriation of public property for
private gam almost urges the Mayor 10 t;tEe the
subway sign controversy into the courts tvF de-
! cision-