The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-03-02
iirH AVENUE TRACKS STAYY'
REFEREE HERRICk FINDS FOR
MN IORk CENTRAL.
says the Franchise u . state franchise
Running S0O N-ars AMI the 'iu ssas
Va Power TO Tear Z % he u acks ~ .
Nuisance hoes Net Own the ~lrrelS

D-Cady HerriCk. Who Vas appointed
referee in the suit brought by the New
York Central to restrain the city from
tearing zap It's tracks In Eleventh avenue
and other streets south Of Spuyten Duyvil.
reported yesterday that the injunction
should he made permanent and that the
railroad Company's franchise was for
Jo years instead of hfty years. az the
city contended The franChIss whlch was
granted originally tn the Hudson River
Railroad Company. Was extended to 500
years when the company was absorbed
by it, present owner. the referee finds.
Costs are put On the city
The r-fsrea finding - basel on the
broad ground that the oompany's right
to Law tracks IN the streets was granted
10y the state. which had aniir. IU?isdiction.
and that the rity could no, tear up the
tracks on the ground that they are a
public nuisance
The referee goes into the acts Of the
Legislature giving the old Hudson River
Railroad Company the right to lay lie
tracks through the streets aud avenues,
says that a larg. part Of the territory
ol the city tTavcrss,d by the line was
s;-NrseIy inhabited. when the racks were
laId but has since heroine thIckly popu-
lated. many Jsr~ons haze TO cTOss the
tracks daily and traffic In sometimes
blocked 10y trains OF the list Of casualties
IN evidence he say How such deaths NJ
INJURIES were caused. whether by the fault
a the railroad company or by the fault
OF the persons Ailled 90 .njuTed does not
appear
n - the Citv'- contention that the
CITY could giant no franchise IN perpstuity
but that the franchise was limited tn fifty
ysars and expired Ia lsSs. the referee
says
In approao hing a consideration Of the
rights Z the respective parties we must
bear m mind that the city Of New York
has given nothing 10 tho plaintiff or tie
prsd@c.ssors. th., hudson River Railroad
Company. because 4 had nothing IN give
IN the premises occupied 10y the painun.
Il has don" WAS done not IN IT.
h-lAH hut a. an agent ~ the state.
! b. c'iv = Nsys York did not and does
not own the streets within its boundaries
as cor pDTtte ~ TuniCIual property. but
only holds them 10 trust for the public.
and such control az u has over them Is
simply an agent ~ the state. The /.
81, t. could have granted to tins railroad
th2 N att To occupy streets AMI avenues |
~ the city 81 New York without the con-
sent ~ tho city thereto. and u has from |
vrne - tune ~NarriSsNi that power without /
81 the CITY
The Court - ApI~als has held that the :
Etrest- are tuU the usa OF ths p-Oplc OF
the Whola state and any notion that the
iph1bi'a' ~ - the city nave a distinct or ;
pscuhst rIg'.t IN them not pertaining 20
the whole p'iOlIc IA erroneous. A. Tn the
,rrcurnsta NOES - this particular cass the 1
regaVsss Slvs.
Whore 10th the franchis@ to DO a cor
poration and ia. traf chase 20 occupy
The stF.-ts ~ = city ar" granted hy the
same act Jh..rs IL nigh authority inT
saving that there - Lo Jroprty Iigh'
10 r-s. ths, street lsf' in III. corporation
when rh@ act Granting = a. "a corporation .
aud conf.Trng IN. fr.tLchis" To- ,t-.. the
str ..fs ~ repealed here -. however.
authority IN Tins stat tn In" effect that
q sac lied sp-Clt fr,I.chI>s. bong spa
-4,.' md iistirC' from "a franchI--' To- b'' .
a cOrpGr..iIon. u not eNtlnguish'd nv tho .
iessth ~ di-solu tion ot the corporsAtlOn, /
hat a franchiss' To occupy thu. STREETS IN !
= property right acquired 10y the CprpO- /
ration and survives its death - the /
iron Tty acquired ny rn individual sur
wives his death Nh"th"r that rule will
apply WI IT, both franchiS-- hAy" ben .
ETant.-d hY the act u Incorporation. zach .
Jving part and pare 81 tho oth'r, has
lot ~ f,T a. ! hav" b. IA abis to discover
D,cn a. rmin.d IN this stat
As - tu- - ..'nstOn Ut tho franchise
he relcre. ssys that the plaintiff cont
llny Vas Cvcated m 1859 hv the con-olI-
tat.ou OF the New lors central AMI the
Hudson River railroads. ami Under
se";tou Of the consolidation act all the
franchises Of the several corporations
acre transferred TO the new corpora
..uu he referee thinks this UIss
Ia," included the right to uss the streets
d the city. and saws that the consent nj
ne CIJy IN this respect was not a Separate
franchise but a single step m a." grant
ng 81 one whole indlvlslble franchise
| ne rlght and power 70 20 through the
streets Of New York cannot he sllmI-
lated and separated from the franchises
q whIeh u cornposes a part
A. u the legal meaning e rights
oi way" which Nerr also ~ Ins.srr'-i -
the consolidated company tho -at@T~s
aye that the rtsnt Of way granted 10y
the State was a right ~ pas-AS" from
and through sIch streets N the cItv ~
New YORK "a the directors should select
lCd ihc city of New York should assent .
90 liz Accordingly deCidss that th.' .
o ght % tie Hudson River Railroad -
Oh crate cars from Albany 20 New Norh .
city and o,.r he -tr,--is snd ay-nu -
OF the city was extended for the oeu"'t'
- the new corporation and ina
the plaintiff AaA existing l"g7i Ught
aud power 70 occupy the streets and
avenues IN question
On tho city's contention that the 'racS-
= public nuisance the reier"''
sdVs that the exercise Ot any power or
night authorizes and granted by the
! legislature cannot De held TO constitute
a gIb..G nuisance He says u would ~
an anomaly 4 a subordinate agency OF
ne STATE could nullify the act OF 'iIe state
- ~ 4utIER privilege. although a private
persou might maIn'aIn AZ acton 20.
-TecIa' damages hy reason OF The eAer-
g I~s NJ the privilege
The reser~s SAYS that the city IT. pro
posing 70 remove the tracks is not acting
IN IT. corporate capacity au1 las no NOR"
r!gnt than . private psrson Although
he franchise or power granted cor
ppration may be exercised IN such =
negligent ~ improper way az 10 constI
tute a Nuisance and proceedings may be
taken to enIoIH such manner OF method
OF rserc'siug the night conferred upon u.
or for damages. hat doss net warrant
no destruction of the right itself. Ne
thinks that the city has no
r ght to tear up the raids ~ the plaintiff
upon the srr~ets or avenues ia question.
l. - perfectly apparent, concludes
the refere-. that the removal OF tho
plaintiffs tracks from the Streets and
avenues in the city Of EeW York, per