Year: 1863

Opinl0a OF Judge Hogeb0om OF ths


Supreme Court


eUrx1u O0URr-sPECIAL TERN.


Before Justice Hogeboom.


fm paoADwAY RAILROAD.


GOT. 2S-1Ne People Of ne State Of NeS Fork dMd yaxse
kwpAy and Hugh SmstA ". The Meas York and Harisw
Raisvoad Cowpowy ard 0s Aayor. AIdarwe~ and Com
sso~aIty Of the Cssy Of NeS Yok.-Hearing an erdel
granted by Justice PeckhAm 70 show cause why an In
junction should not issue against The dsfondants the
Mayor, Aldermen and OommonAlty OF the city OF New
York. restraining them from granting TO she New York
and Harlem Railroad Company the right TO lay oon.
struot railroad track tracks in any Of the streets
or avenues In tho city OF New York, and from au
thorzing said company To lay q railway or track
In Fourth avenue, Madison avenue, Union square,
Broadway, Fulton street, John street, Whitehall
street. any Of them TO break and tho pave
mont thereof In any obstruct said streets,
preparatory 10 for the purpose OF laying establish
Ing such railroad track railway therein, and also 70
straining the New York and Harlem Railway Company


from laying or constructing such railway or track n any
Of tho streets aforesaid and from breaking or
removing the pavements therein and from obstructDg or
encumberng any Of such streets for such
pose disturblngor interfering with the carriage way
thereof inerruptng the travel thereon and granting


temporary injunction Of the purport against the
New York and Harlem Railroad Company In the mean
time.


Lyman Tremaine A. R. lawrence. Gilbert Dean, Waldo
Hutchns. John Il. Reynolds, for plaintiffs; John K.
Hackett. Charles Rspalo, Horace F. Clark Augustus
Schell, John K. Porter, for defendants


BY THE CouRr-HoGsBooh Jon the 2lst day OF April,
1S63 the Common Council Of New York passed ord.
nance, which subsequently approved by tho Mayor
granting permission to the New York and Harlem Rail-
road Company TO extend their railroad and construct
double track from their present Fourth avenue track be-
tween Seventeenth and Fifteenth Streets through Broad
way TO the foot OF whitehall street. with an additional
single Bowling Green and State street. and
another additional single track around Union square,
with further permission to construct additional single
track the Fulton ferry through John street. Burng
slip and South street, returning through Fulton street.
to extend their railroad construct double track from
their present track In Fourth avenue through Twenty
third street 70 Msdson ana thence through Mad
with further permission TO connect Herewith by double
single track from Fourth avenue TO Madison avenue,


II was provided In the ordinance that the company
should pay to the Comptroller OF the city, monthly for
from ali the travel below Union upop said autnor
lied extensions Also that the company should at their
own expense, keep in repair the paveeuts between tho
curbs in the streets occupied traversed by their
tended raroad-should pay license fee OF twenty five
dollars for each upon the same and should
form to some other provisions contained in said ordi
nance necessary to be here particularly enumerated
designed to insure the safety and convenience OF the ira


The New York and Harlem Railroad Company pursu
ant to another provision in the said ordnance notified
their acceptance OF the said ordinance within ten days


By preamble to the said ordinance It is manifest that
the Common Council relied for their authority to grant
the permission beSrS recssd upon aa act ne Lsslsa
entitled can amend an act entitled an act to ncor
porate the New York and Harlem Railroad Company,
The New York and Harlem railroad Company 70 extend
their railroad through such streets in the city OF New
York as the Mayors Aldermen and Commonalty OF the
city might from time to time permit.


And the questions in this arise upon the con-
sruction 70 be given TO that act Whether the power
thereby conferred has been exercised and
tracks authorized by the ordinance legitimate
else Of the right TO extend their railroad conferred by the
been expressly or mpedy repealed by subsequent sta
tutea abrogating the same or inconsistent Herewith


Some Of these questions IL will be necessary to con-


The New York and Harlem Railroad Company was in.
,orporated BY an act Of the Legislature passed April 2
iouble railroad Or way from any point on the north
bounds OF Twenty third street to any point tho Harlem
The west bounds Of the Eighth avenue with branch 70
the Hudsen river, between Ono Hundred and Twenty.
fourth street and the north bounds q One Hundred and
haust the power conferred, and prevent subssqueas
change Of location, except BY consent Of the legislature
The line Of road viii bs observed was only ffom
there two) would have TO be, think substantially
upon the route. The permission to build double
upUn hu s
enabling to run In opposite directions without deten
ion collisonand not two essentially different routes
,ccupied by parallel railroads. Indeed the right OF
Irantng 70 other persons or corporations authority TO
occupied BY the New York and Harlem Railroad Company
expressly reserved 70 the Legislature by the six
eenth section Of the Same act.


1882 which the defendants rely. By It this company
we're authorized and empowered, with the permission
,r the Mayor Aldermen and Comnonalty Of the city Of
New York, to extend their railroad along the Fourth
avenue 70 Fourteenth street in the said city, through
such other streets In the said city as the Mayor Alder
mon and Commonalty OF said city might from time to
limo permit subject TO such prudential rules were pre-
scrbed by this act and as the said Mayor, Aldermen
and Commonalty, IN Common Council convened, might


By this act the railroad, which before terminated at
twenty third street was permitted 70 be extendedthat
is continued prolonged 10 Fourteenth street. This was
ten streets further eouth upon the same avenue But
1t foreseen that public convenience and travel
might require It's further extension, and I think
this was intended 10 be in the same general di-
recton. II could not be extended further north for IL
already extended in that direction 70 the Harlem river
and there streets beyond that river The intent
Of the Legislature was have doubt that IL might be
extended further south II the interest Of the community
should require aud through such other Streets proper o
that purpose, as the Mayor Aldermen and
might from time 10 time permit NOT neces.
the junction OF Fourth or Fifth street for il was foreseen
that the public accommodation might require Il 10 be
carried further down not necessarily terminate at tho
end Of the Bowery large portion o.! tho population
and business OF the city was still below that not neces
sary perhaps, pursuing the route OF either OF these
streets-at oil events not necessarily ending at their
southern terminus but through such other streets as the
city authorities might permit prescribe, con-
sstenty with the main purpose OF the act Az the end OF
the Bowery several streets dvergedlo the SOUTH or in
that general direction The precise was not Intended
to be dehned but this think designedly left 10 the
sound discretion OF tho Common Council having refer
ence TO the travelling and business interests OF that
crowded mart and II was To be extended through such
other streets as the Mayor Aldermen and Commonalty
might from time TO time permit. / see no reason to
doubt that this was continuous power left 10 be exer
cised from time 10 time the wants OF the community
should require II was not, therefore, power which
spont by single grant or permission, but might be
peatedy exercised according the exigency OF the


Whether the power, when once exercised and acted
upon by the laying down Of track, In accordance Mtn
the permission given. could be recalled the rack broken
up, and new route prescrbed is question which IL not
necessary 70 DO decided and which shall not discuss
II has It's difficulties.


But am strongly inclined 10 think ha, The extension
authorized by this act longitudinal and not late.
raj one. lateral ROAD = more properly branch than
an extension IL IL spoken OF under the name In the first
section Of the act OF 1884, where authority Is given TO
construct branch 70 the Hudson riverhat is road
or route dvcreng from tho main trunk OF tho railroad
so by the first section OF the Amendaory act Of May H.
1885, authority is given 10 alter