New-York tribune., 1908-08-04
DEATH AVENUE DELAY
OPINION BIZ PENDLETON.
Condemnation Proceedings Illegal
at This Time, He Says.

The Public Service Commission received from
Corporation Counsel Pendieton yesterday opinion
favoring the New York Central in relation to the
action OF the commission November Is last. in
calling the Corporation Counsel to condemn and
acquire all rights of the railroad I'm certain streets
The Corporation Counsel rules that no such con-
de7nnation proceedings can he taken at this time,
because IN the negotiations between the old board
OF Rapid Transit Commissioners and the repre-
sentatives of the railroad company there was no
substantial compliance with the terms Of the Sake
law, under which the proceedings were begun
Mr.. Pendletou quotes from the SAKE law, and
discusses the plans provided by George S. Rice the
chief engineer TO the commission. and points out
that It deviates from the plan a subway laid
down in the SAKE law. Mr. Rice's plan was to have
subway below 69th street. but above that point
the tracks were to remain at present grade and the
streets were to te carried them by bridges. ex
cept AT Manhattan Valley. and also in Twelve ave
nue.. between 135th and 136th streets where there
were to he elevated viaducts.
Mr.. Pendleton holds that this arrangement
not in accordance with the SAKE law. and SAYS Mr.
Rice admitted much in his report of November
a. 1906. when he said that the act looks only to
the construction of subways lieu Of the present
surface tracks
He thought. however. that the plan he proposed
would be a more practicable way of dealing with
the question and that it could he authorized in
amendment which would not appear to he incOn-
sistent with the main purpose of the Legislature
Mr.. PendletOn points out further that plans for
subways north of 6Oth street were never prepared
nor. SO far information in his possession shows
was any attempt to agree a plan for such sub
ways with the New York Central officials
made.
The making of ar agreement was referred ny the
Rapid Transit Commissioners special commit
tee. consisting of Mayor Mcclellan Morris X.
Jesup and Charles Stewart Smith This committee
recommended bill which would authorize
the construction of the road recommended by
Mr. Rice and add the condition that electricity
be substituted for
Mr.. Pendeton complains that his request for
copy Of the plans prepared by the Rapid Transit
Commission not complied with and copy of
the plans obtained by his office until June
Of 1905. II not until the plans had beer OBJ
tanned and inspected. he saws that Il was
tanned that such plan not in accordance with
the act
Prior that time he adds. such time had
been spent by myself and my assistants in pre-
pairing to institute the condemnation proceedings
the act had been prepared and attempt made
to agree with the New York Central Railroad
Company TO carry such plan into effect
He says that further legislation would have
to be obtained to carry the plan under contempa-
ton into effect Such further legislation how
ever. never obtained and for that reason the
plan which the basis of such tentative agree
ment became effective.
Wherever by statute the power TO condemn is
made conditional upon the failure of attempt
by the condemning party to agree with the owner
of the property to be acquired upon price for the
purchase of the same he says, the courts have
without exception held that a bona fde attempt to
agree is jurisdictonal prerequisite 10 the insti-
tuition of a proceeding to condemn the property,
and that the facts showing attempt to agree
and the failure thereof must be alleged and
proved"