The New York herald. [volume] (New York, N.Y.) 1920-1924, 1920-11-30
CITY LOSES FIGHT
TODRIVERAILWAY
FROM RIVERSIDE
Supreme Court Sustains
New York Central in Its
Refusal to Move.
APPEAL TO BE TAKEN
City Claims Title to the
Property Through Early
Legislative Grant.
DONNELLY DECIDES CASE
Says Only State, Which Gave
Charter, Can Question Use
Under Franchise.
DONNELLY DECIDES CASE

The New York Central Railroad won
yesterday the suit brought by the city OF
New York to GUST 1t from the roadbed
along Riverside Drive between Seventy
second street and Spuyten Duyvil. Su-
preme Court Justice Donnelly held. as
matter of law, that the city is precluded
from questioning the railroads title to
the land. The city will appeal from the
decision.
Corporation Counsel O'Brien. acting
for the city. claimed title to the land
from early legislative grants. He con-
tended that the city is entitled to inn
mediate possession. Alexander Lyman,
counsel for the railroad, argued that
the railroad has title to the roadbed
through charter granted in 1S47, and
that the city is estopped from question
ing title by reason of the railroads I'M
disputed possession for more than twenty
years.
Justice Donnelly found that the Su-
preme Court had decided In earlier liti-
cation that the railroad received It's
charter from the state, and declared
right Of the railroad corporation to exer-
else its corporate functions under the
franchise granted
Justice Donnelly said in his opinion
Il hold in this case that it Is not
necessary for the court to pass the title
to the soil of the defendants right Of
way In order to dispose OF this proceed
ing. This because / hold that as q
matter Of law. the plaintiff is not en-
titled to immediate possession.
In the case of the New York Central
and Hudson River Railroad Company
predecessor of the New York Central
Railroad) against the City OF New York
brought By reason of the city's effort
to enforce a resolution Of the Board of
Estimate, to restrain the municipal
authorities from removing the railroad
company's tracks from the streets of
the city, 1t was held that the Hudson
River Railroad Company had received
its charter from the State. and that
when Its terms had been complied with
and the city had consented to the con-
struction of the railroad in accordance
with chapter PIG of the laws of 1916.
the corporation was in possession of q
duly acquired franchise TO construct.
operate and maintain the railroad, with
which neither the city nor any one ex-
cept the State. could interfere.
THE courts decided in the case In
question that only the State can ques-
ton the rights OF a corporation exer-
cising the same under franchise
granted by it.
There can be no DOUBT that under
the Judgment entered In that case the
city is not entitled 10 immediate possess
sion of the defendants right of way In
the streets and avenues OF the city or
New York, but that the State. not the
city, has authority to modify or repeal
a charter granted by it.
Therefore the motion OF the defend-
ant, In so far as 1t relates to the streets
and avenues Of the city OF New York.
must be granted.
IL hold as a matter OF law that this
plaintiff is estopped and precluded from
maintaining this action, and l direct d
verdict accordingly
Mr.. Lyman moved for court ruling
that the railroad has had possession OF
the land adverse to the city Tor more
than twenty years; that the city was
permanently enjoined from removing the
tracks by reason OF the prior litigation,
and that the city has looked on without
objection" while the railroad has occu-
pied the roadbed along Riverside Drive
oince iS47. and that the relief asked by
the city in It's present action would mean
the abolition of the railroads freight
terminal facilities here Justice Donneliy
held that in view of his decisions II was
not necessary TO rule on these questions.