The evening world., 1911-02-03

MAY Be REMOVED
BY STA1E,NOT CITY
appellate Division Upholds
New York Central's lnjunc-
ton to Prevent Action.

The Appellate Division OF the Supreme
,ourt to-day affirmed the judgment of
he lower court granting an injunction
b the New York Central and Hudson
River Railroad Company restraining
she city from removing the ~company's
Packs on Death avenue"
The justices of the higher trfbuna!
levote some twenty typewriter pages
ong been a source of irritation to the
itlzens OF this community.
In effect tho decision to-day is that
lie State and not the city has the sole
light to question the railroads use of
he streets. since the state originally
irantcd the franchise to the railroad.
Herrlck Made Report.
The whole matter was threshed out
months ago before D-Cady Herrick. as
pierce. with the rsuit that he reported
b favor of the railroad. The lower
lourt then confirmed his report. and
he city appealed.
THE real question presented on this
lppeal," said the Appellate Division.
lis whether the city Of New York can
lcmoyc the tracks OF the plaintiff To-
lated in certain public streets and ave
Tues, as expressly authorized by the
let Of 1916 under which the Hudson
River Railroad Company was lncor.
)oratcd and In which streets n ave
lucs tire plaintiff has maintained these
Packs and operated its railroad under
Die franchise then granted"
Tho franchise gave tho company the
fight TO locate its tracks on ANY oi
he streets or avenues OF the City oi
Cow York westerly OF and including
EfvItN- ags n,I on mr. NaawfaTfN n
iIuCson. street. prorlded the assent %
! Jhc Corporation cr said city be frs
= obtained Tor sue location
City Agreed in 1s47.
Tho assent of the city referred TO wal
,ptaincd IN i>i7 20 construct a double
Inc OF tracks with suitable turnouti
Hong the limo OF the Hudson Rive
Iom Spuytcn Duyvil Creek to nea
,iNty-eiVhth street. occupying as mud
y Twelfth avenue as lies along shore
hence winding from the shore so a,
? % i%ntcrscct Eleventh avenue at or neaI
;ixticth street: thence through the mid
lie OF Eleventh avenue to about Thirty
ccoud street; thence on a curve across
'enth avenue. interesting with Tent
venue at or near Thlrtieth street
hcncr through the middle of Tent
venue to- West street. and theme
|FNNaI Nnf Hlluulc Ol west rtItet U
lanai street.
IL must be considered" said the .Ap
icllatc Court. that the Hudson Rive
Railroad Company thereby acquired
Franchise to construct. maintain an
'pcrate a railroad upon the our
ldoptcd ny 1t within the city of Ne
FORK, which neither, the City OF Net
fork ndr any power except the STAT
u New York could Interrupt; or inter
ore with
City Clsimet Expiration.
The franchise granted In 1876 to "a
Iudson River Railroad wa Cor fit
ears, and In 1869. when the Hudso
,Ncr Company was merged with IN
lew York Central, the Legislator
authorized these corporations to he
pme consolidated by the formation q
new corporation with a life OF q
Ears and transferred to the new COZ
,~oratlon the franchises held by bot
onsolidated corporations"
30 IN its complaint the city claimed Nh
franchise of the old Hudson River Con
pany had expired by limitation and d
rected the removal OF the tracks q
once. AAs