The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-15
LET THE SUBWAY SIGNS STAND
JUSTICE BISCHOFF FORBIDS CITY
TO REMOVE THEM

Untu the Courts Have interpreted the
Statutes and the InttrborouEh Con'
tract-He Doesn't Think the Tunnel
IL HiEhWny-City May Appeal.
Supreme Court Justice Blschon handed
down a decision yesterday restraining
Borough President Ahearn and all other
city ofticials from interfering with or at
tempting to remove the advertising signs,
newsstands and slot machines in the sub
way. The application for g Oh injunction
was made by the Interborough Rapid
Transit Company and the advertising
firm Of Ward a Cow. The decision In part
says:
The actual interference threatened Is a
removal Of the property by virtue OF the
olty's control over the streets, and, so far,
the threatened act might we'll be enjoined
as excessive Of the authority OF the NUM-
cipal officials whose intention was expressed
in the notice referred to. Conosdedly
the authority Of the Borough President,
or Of the Superintendent Of Membranes
70 remove private property from the own
er's possession, must be confined to cases
where the city has control Of the place in
which the property is located, and the
contention Of the defendants Is that the
railroad is a street or highway within the
city, subject, as such, to supervision by the
city's officials and 70 their control in the
manner in which it shall be maintained
The Rapid Transit act, says Justice Bisoh-
OF. while making the road a city street or
highway, gives exclusive control Of the
manner Of it's operation by the lessees to
the Rapid Transit Commissioners. He con-
tinues
"ln ordinary acceptance and tested by
the conditions out Of which the Tegula tions
for the control Of streets arise, this railroad
isnot street, but simE ly railroad.
Apart from this. however, the threat
ened removal Of these signs and other
fixtures should, in my opinion, lie enjoined
until the rights Of the plaintiff, under the
lease and under the ste tute, are definitely
detemin med upon the trial OF this action
and after a full hearing.
The sta tute which empowered the board
To make the contract for the construction
and leasing Of the road is very broad in its
scope, and may well be read as authorizing
the lease Of the property in such a manner
as to afford the lessee every tenelt which
custom attaches to the OF Grafton Of a rail-
way, and the contract itself recognizes the
right OF the lessee TO n ain e in advertising
signs upon the stations, since the manner
in which advertising matter shall be dis
pl1ved Ia regula ted by the contract
Justice Bischoh goes on to say that II the
displaying Of advertising signs and the
maintenance Of newsstands, Weighing and
vending machines we're not a part Of the
customary operation Of a railroad station
and the revenue therefrom a part Of the
legitimate earnings Of railroad, then the
claim by the road and Ward q Cow Of the
right 10 exercise such privileges could not
be read into the contract. IL such exercise
would interfere with the rights Of the public.
He concludes:
The true construction Of this contract
must depend, to a material degree upon
facts 10 be proven at the trial, and there IL
apparent ground for the plaintiffs assertion
OF legal right in harmony with its acts
have not now 70 determine that the plaintiff
must surely prevail in the action. IL suf-
fees for this motion that a question Of
gr witty is presented depending upon the
construction OF the statute and Of the con-
tract
Ward d Cow are paying $3.50, 900 year for
the advertising privilege. and the profits
are said 70 be large. II Is expected that an
appeal will be taken by the city from justice
Bischofis ruling before any further proceed
tngs are begun.