New-York tribune., 1907-11-24
NOT BELMONT VICTORY.
DECISION MTSCONSTRUED.
Does Not Pass on Right to Build
SteinzCay Tube.

Complete copies Of the decision Of the Appellate
Division in the suit the city of New York and
John H OBrien Fire Commissioner, against the
New York & Long Island Railroad Company,
which were obtained yesterday, show that the
ruling Is not so much in August Belmonrs favor as
the first reports indicated. These reports repre-
scented the decision sustaining the tunnel COM
pany IN its work and practically confirming It's
right to exist
In reality the decision does such thing. II
declares that the Fire Commissioner acted arbi-
trarily revoking permits for explosives issued to
the contractors in the Belmont tunnel II does not
pass all the legality OF the existence Of the
company and its franchises the present time
The action which decided begun before
January J. 1907, TO which time the Legislature had
extended the life Of this company.
The decision expressly states that some OF tho
questions raised and Others that might be sug-
gested" do not properly belong IN this suit. II
the company is trespasser. IL II has forfeited
its franchises by matters arising since the COM
rencement of this action. and which are not before
u.s. there are appropriate remedies"
There is now pending second action by the city,
Instituted February 21 1907 by Corporation Counsel
Ellison, asking that the court "judicialy declare
the corporate existence and powers of the defend
ant determined, and the said franchise granted by
the city OF New York and said Long Island CITY,
as aforesaid be forfeited and void" Argument
on the demurrer TO this complaint heard before
Justice Davis December s, and in the ordinary
course Of events decision should be handed down
within a week two.
in this puzzling Steinway franchise case were
in the opinion written by Justice John Proc
Clarke. there little nothing I'm 1t of COM
fort Mr.. Belmont in its relation to the present
situation of the Belmont tunnel. Contentious that
Il was not a legal company were set aside; conten-
tions that It had forfeited its right tc exist were
held 10 be improper. since the original action was
begun in 1906. before the time limit for completion
extended by the Legislature had expired. But
those conditions are entirely changed to-day, and
the facts which produced this decision Will not be
true when the action brought by the city after
January !. 1907 is decided.
The case was taken 10 the Appellate Division by
fhe city. which appealed from permanent IN
Junction restraining its officials from revokng
tain permits for explosives issued 70 the Degnon
Company contractors for the tunnel. For the city
the arguments raised that the company
not a legal corporation that II had failed to COM
plete fits work within the time limit, and that the
consent of the Dock Department OBJ
tained by the tunnel company to cross strip of
land under water which granted 10 the city by
the State OF New York in 1870.
On these the salient points at issue, the decision
that the corporation legal that IT
working properly within ifs time limit, and that
whether not Il had obtained the of the
Dock Department, was immaterial to this suit.
Said the opinion:
We have seen that the oorP@Sratj2n @ w was sd duly or
sry Dern1its t0 enter mon ba corstTctio1 ~ its
tunnel that when issued the said permits IS
cation was arbitrary and based upon no violation
OF the rules and regulations governing the subject
But II continued
Some Of the questions that were here raised and
some others that might be suggested, do not prop
erly belong In this suit If the company is tres
ters arising since the commencement of this action
and Which are not before u.s. there are appropriate
before usathst Is IS the attempted recreation Of the
And it was in this last paragraph Of the opinion
that the sting lay for Mr.. Belmont and his asso-
cia'es in the tunnel company. Among the other
questions that might be raised" is the of OBJ
tanning permission by the tunnel company cross
the strip land under water granted by the state
20 the city Of New York. which not passed
in this present decision. The Steinway franchises
were three: A franchise granted by the city Of
New York for tunnel under 42d street; q patent
granted by the state for right Of way for a tun-
mel under the waters OF the East River and fran
chise granted by Long Island City Tor the tube
under the streets Of Long Island City. Yet appar-
emily the hackers Of the tunnel project overlooked
the strip OF land under water 800 feet out from
the pier line on the New York side
This undoubtedly will enter largely into the de-
csion Of the case brought by the city in February
through Corporation Counsel Ellison. After recit-
ing the history of the tunnel company. including
the fact that the last of its existence by
the Legislature took It up only TO December 81.
1896. the complaint in that case declared:
That by reason Of the matters aforesaid the cor
asS 6dn be g ana DAP powers we of the aS
work and excavations in and under the streets Of
the city OF New York and the excavating and con-
ihe first day of January, 1907. has been and con-
Fttute trespass and nuisance, and is without
legal right or authority.
Wherefore. plaintiff prays that this honorable
court by permanent Injunction directed to the
defendant, their officers. directors and servants,
and every other person. command them and each
of them TO absolutely desist and refrain from
further excavation under the streets of plaintiff.
under said East River, from further construction
OF said line Of railroad in and about the route as
specified in its articles Of incorporation and as
changed and altered aforesaid, and that the de-
fendant. its agents. servants and all other persons
be permanently enjone6 and restricted from the
construction and operation Of said line of railroad,
from interfering with entering upon said
premises, and that the court judcialy declare the
corporate existence and powers OF the defendant
determined and the said franchises granted by the
city OF New York and said Long Island CITY as
aforesaid TO be forfeited and void, such other
end further relief TO this honorable court shall
seem proper
The former directors Of the New York & Long
island Railroad Company are trustees of
the tunnel company To open the tunnel they will
have to obtain the permission Of the Public Service
Commission, and 1t is known that the commission
IS not inclined 20 make any bargain which is not
the fair and reasonable arrangement of which
Mr. Belmont has spoken. The commission has not
yet received any application for permission open
the tunnel