New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1910-03-02
CITY LOSES SUIT
FOR nth AVE.
MIST NOT DISTURB
TB4(KS THERE.
Er-Judge Herr1ch', as Referee
Holds That Central Has
.5O0-Tear Franchise.

.500-Tear Franchise.
rx-gudse n. Cady Herrick. as referee
r. 80 action brought by the Ne" aoih
~cn--aI & Hudson River Railroad COM
nan for an injunction to restrain 1ne
-i,, ~ New York from removing the
.ls7nriff-z tracks from Eleventh avenue
..-7is in favor OF the company in his re
orr filed Yesterday with the supreme
cunt
The dndinss Of Mr.. Herrick arc based
.oEoly on the question Of the Ne" f"i
Cc7.raTs franchise rights The ute OF
ths company TO use or occupy the iaiiu'
.a>-s The referec. is not involved in the
se,,4S Of the case and he makes no flnd-
-,.-, IS 10 this title. But he fully up
colds The franchise rights Of the pam
-. holding that the original fifty year
amt 10 the old Hudson River Railroad
uas extended bx the state LEGISLATURE
o -,f.a ears when the New 1orh Cehtlai
absorbed the old COMPANY
Mr. Herrick holds that the city mas
m right 10 tear UP the tracks on the
--a-,p5 of their being public nuisance,
q
-e--,,,i--ad tf7e tracks 10 be laid and main
.sired no public nuisance could ensue,
-, he question Of the states precedence
- jurisdiction over public property, eH-
7u9Ee Herrick says:
T-9 CT Of Nev York do not. and does
~, .n-3 +fe streets within its boundaries
,.l--,o-sye or municipal property. but
7alds them in trust only for the pubic,
.-..r such control as il has over theln -
-..-r rn1l1d have granted to ti1.e Hudson
rts-r Railroad COMPANY the rlsn 10 -. -.
2uY, the streets and avenues OF !ne ~ ~
= " York without the assent OF the CITY
.....-a-, and Il has from time 10 tine eAeF-
id tl7a1 power without the consent OF lIlc !
ft.
The report ef the referee also quotes
- -hfs connection q decision Of the
-rl1-t Of Appeals, which says:
Tho legislature has entire control Of
.-.-- r1,lhfic rights in the highway; Inc
streets in question are I,ot 4Si-9d .3Ca Teeis-
@--.ra eOuld rot authorize the use OF w .
:rrrot> IN the way prescrioed IN the act
r. remission Of the municipal govern
..-- ~, mere creation existing at the
sd ~ lie state would add nothing 10 the
1"t-.
Humane Side of Case.
I.a--ng aside for moment the coio
.cal propositions involved in the case
i2c referee dwelIs on the humane sloe /
-erc controversy. the killing and MAIN
= % persons by New York Central I
r. ms which gave Eleventh avenue It's :
-..f.g;..,et. Death avenue and which /.
.tirred its inhabitants 20 an opposition
a., :. continuance OF the tracks and COM !
lied official action.
"A her of
IONS killed and injured by the opera
IN Of cars on Eleventh avenue, ana I!
rs. How such deaths or Injuries were !
used. whether by the fault OF the rail /
cad .onlpany or by the fault Of the per
...s. KILLED or injured. does not appear"
f:e slds that the passage Of cars over
D., tracks OF the company has been
-. euisted as far as possible SO that they /
=f~ not run during the hours when chill /
i-..p- arc going 10 and coming from
.,1-.rel or in the hours when the streets
49, likely TO be used by persons going to .
d ranirc from their work.
Aide also from the legal aspect Of the .
e, Mr. Herrick says of the financial I
-, ,asfderaticns involved that the removal .
q. the tracks would destroy and render
;.iJ-- in New York City and that the .
slafutif would suffer irreparable injury, /
c- nhich il has no adequate remedy al
tsud-
Inc referee takes UP the argument that
+. giving it's assent TO the occupation of .
r. streets and avenues, pursuant 20 the
I-r5ied power granted 10 it by the act
.Ic4ting the Hudson River Railroad
-piapanE, tho city gave TO such corpora
.oI Z separate and independent fran
.llsc that would expire With the period
~ hich that corporation was author
sd 70 do business.
iH reply TO this, Nj. Herrick argues
t.a1 while it has been established as
.aquestionabiy true that the franchise
Z. construct and operate railroad is
Z rent from the franchise to be COR
z ca tion. botn kinds 4 franchises spring
.-eg0 The same source-the state
On Franchise Rights.
Tho plaintiff Contended that the fran
IKE 20 occupy the streets did not ex-
.rc ~ith the expiration Of the corpora
ion 1t the END OF nifty years. The city
srgrsed in opposition TO this contention
t2t the special franchise, being Gre
steJ by the same act that created the
'erpcration, dies with the corporation.
70 referee says on this point:
W.ere both the franchise 70 he 4 corpo-
lsu and the franchise to occupy the
t..D's Of q city are granted by the same
.-- .1ere i high authority for saying that
rs Il 30 property right 10 use the
-.."e- left in the corporation when the
..-- -.s"ating il corporation and con-
I'...s the franchise TO use the streets is .
I:l"solel.
caD see no difference in principle be
- r-u The extinction Of d corporation BY /
l" iepeal OF its charter and the death Of .
.--i corporation by the expiration of the .
..f.is fixed for its life in the act Great
.iaere Is. however authority in this
No 10 the effect that q so-caIled "spe-
- franchise being. as Ee have hereto
.'l' seen separate ana distinct from
iEtl lSe 10 bs corporation Il not
- lis3leL o. the death or dissolution of ,
laf- -'l operation lil-t a franchise 70 &C
c'p- ne streets Is property right &c
5'E4 by the corporation and survives its
q, e., - The property acquired by all il
:. 1aai survives his death
= ether tlat rule "-ill apply where both
'.raises have been granted by the act
= f.frol Dcrat5usls each being part nd par
-. e tlc other, has not. - far as | have
-if sole 10 discover, been determined in
E:ste
IL. Herrict arguing The question