New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-20
CITY HAS NO POWER TO
GUST CENTRAL TRACKS
Court of Appeals Decides Right
to Occupy Streets Came
from State.
FRANCHISE NOW IN EFFECT
Chief Judge Believes Legislature
May So Regulate Railroad
as to Remove Menace
TO Life.
rRv telegraph 70 The Tribune ]

to Life.
rBy Telegraph 10 The Tribune
Albany, May lit is almost certain that
Mayor Gaynor will veto the McNanus-
Boyan bill. providing for the removal OF
the New York Central tracks from the
surface of streets In the West Side OF New
York City, but even though II wero enaeteo
into law IL would have been nullihed by
decision handed down by the Court OF
Appeals to-day. The decision afrrms the
determination of ex-Justice D. Cady Her
rick, as referee in the case OF the Ne"
York Central TO prevent New York city
from removing its tracks from Death
Avenue" The court holds that the city has
no right 20 remove the tracks, and also
recognizes the franchise rights Of the COM
pany. which the city contended had ex-
PRED. The appeal of the city from the
judgment restraining 1t from removing the
tracks from Eleventh avenue was dis
missed.
Chief Judge Cullen of the Court Of Ap-
ptals, in an opinion in connection with the
decision. says he thinks that il is clear
that the Legislature may so regulate the
plaintiff railroad in the city of New York
a. 10 remove the constant menace and
danger TO life oocssioned by It's present
operation.
Judge Bartlett's Opinion.
The opinion Of the court, which is written
by Judge Willard Bartlett follows in part;
This suit is the outcome Of a notice
served BY the authorities Of the city. OF
New York upon th- New York Central q
llNaA1 f-1r ~
the removal OF its tracks from Tenth
Eleventh and Twelfth avenues and West
street The judgment enjoins the city and
its officers from removing or attempting 70
remove these tracks. IL is based upon the
legal proposition that the right thus 10
occupy the streets in question is derived
by the New York Central &, Hudson River
Railroad Company from the state. through
the Legislature. and not from the city; that
such right was conferred upon the plain
tffs predecessor in title in 1916 and has
never been taken away; and that il can
only he taken away by tie power which
granted ii. that is TO say, the Legislature
itself
The assent OF. the corporation of the City
Of New York TO the location Of the tracks
of the Hudson River Railroad Company on
the streets in controversy was duly given
by ordinance approved by the Mayor on
May 6, 1884,, and subsequent ordinances.
The assent of the city did not assume 10
prescribe any limit OF time during which
such operation of the streets should con-
tinue. We think no such limitation OF the
franchise Is 10 be found in the charter OF
the Hudson River Railroad Company.
We see no escape from the conclusion
that by means OF this enactment Ohe con-
| solidation act Of 1869 and the proceedings
hereunder, the Legislature transferred TO
the plaintiff the franchise In the New York
City streets which it had originally be-
slowed upon the Hudson River Railroad
Company in 1886.
That franchise, il must be borne in MIND.
proceeded from the state and not from the
city At that time. the authority of the
legislature over TIE streets Of n NUM-
cipality was not subject TO the constitu-
! tional restrictions which now exist. The
Legislature chose to make the location Of
the tracks in the streets OF New York de-
pendent upon the assent OF the municipal
corpora ton. bui ii was not under any legal
obligation TO do So and the fact that II
did so gave the city no authority TO with
/ once been made effective BY the city's con-
4 sent. Assuming the existence of that
/ power in any one. II belonged and still
/ belongs 70 the Legislature and not to the
| Bryan agt City Of New York. 1876 n y. 1851.
In granting a franchise Of this char
acter; ndefinits as to its duration. the
should ne enjoyed by the successor or
SUCCESSORS Of the immediate grantee. II
that grantee should cease 70 operates, the
either in consequence Of ceasing 10 be a
corporatio or for any other reason
The interests Of the public in the other
direction were protected by the reserved
right Of amendment and repeal There is
much evidence in tire record before Us in
/ dcating that these interests demand 2
/ radical change in the manner IN which
the franchise of the plaintiff shall be en-
/ ioyed Indeed. IL is said in the brief for
/ the respondent: The conditions existing
/ in the streets through which the cars pass
are conceded TO he bad and the plaintiff
/ is willing to make them better" These
ere matters. however. over which the
courts nave no control The question upon
which this litigation turns IS whether the
/ by the ei.y of New York. The act Of the
I Legislattfe which permitted the Hudson
/ River Railroad Company 70 co there sixty.
( FIVE years ago. and which the Legislature
effect ever since. compels us to answer that
/ question in the negative
The Opinion of Chief Judge Cullen.
Chief Judge Cullen. in a concurring opin
ion. says
! ! concur in the opinion Of Judge Willard
Bartlett ana also in the expression Of hi.
peTsona view as TO the power of the Lesis
/ latCIe 10 modify or regulate the Franchise
/ given by the state for the location OF the
/ plaintiffs railroad IN the city Of New York
/ There is this marked distinction betweer
the present case and that OF People VS.
/ o Brien iii y. y y: There the Franchise
granted was that Of 4 street surface rail
I tain a road in the street was destructive
I Of the franchise.
There is no franchise in this case 70 do
/ the business of n street railroad and the
/ permission 10 occupy the street was soleI,
/ as means for running from one tern1in,i.
! Of the road to the either. nor 0id the fran
chise TO maintain the road include an un
\ qualified right TO maintain u on the sur.
Z face. Under the power reserved to thu
/ Legislature 10 alter. amend. or repeal Z
| charter II was authorized % make any al
/ teratlon o. amendment OF a charter granted
subject 10 il which will not defeat or sub
! stantally impair the object Of the gran
/ or any rights vested under it, and which
! the Legislature may deem necessary II
! right CLOSE VS. Glenwood Cemetery ~
Under this doctrine the Supreme Cour
Of the United States upheld the VALIDITY
| OF an act Of the Legislature Of the Stat,
| Of Connecticut compelling railroad com
psny to abolish. at it's own expense. al
g gnI,ds crossings as yse exercise Of th'
| r Co. vs.. Bristol. 15l L s. $50 So. II
the case before us think It clear that IN.
| Legislature may so regulate the plaintiff
railroad in the city OF New York as 10 re
move the constant menace and dancer Il
life occasioned by IFS present operation.
The conflict between the decision of IN,
Court OF Appeals and the McManus- Boylal
bill is that the bill fails 10 recognize th
companys franchise rights. giving the cit.
the power 10 remove the tracks next No
vcmber If q plan for taking them from th
surface Is not agreed on by that time
/ Another bill introduced 10 relieve tn
! Eleventh avenue situation will be on tn
! Assembly calendar next week. II was in
PRODUCED by Senator McClelland and As
sembiymsn Walker. II recognized the com
| panys franchise rights. and is said to NEE