The New York Herald Newspaper, April 4, 1853, Page 2

RAILROADS IN THE CITY. Pro Cases of the Broadway and Seeond.Avenne Railroads, Supreme Court—General Term. ‘THE CASE OF THE BROADWAY RAILROAD. ‘he Hon. Jyigos Edwards (Presiding Justice), Roosevelt and Morris, on the bench. Aran. 2.—Milhau and Others, ws. Jacob Sharpe and (Others.—The Court was densely crowded by lawyers and ‘Taymen, who manifested the greatest anxiety to hear the @esision of the: bench in relation to the application for ‘fan injunction aguinst the grantees of the proposed rail- yead in Broadway. Judge Strong was unable to attend, fond Judge Roosevelt sat, to constitute the Court, though lke took no part in the proceedings. OPINION OF JUDGE EDWARDS. ‘The plaintiffs in this case allege that the street in the sity of New York, known and designated as Broadway, is Sb 'ancieat street, which was opened about one hundred ago, by the then owners of the lands over yh which the street passes, for their own con- ‘and was by them allowed to. be used by citizens ellers as a common public street or thoroughfare. allege that they are each of them owners in in lots of great value situated upon the street, ‘that they believe they are owners in fee of all the infront of their lots to the centre of the street, only to the easement or right of way over the | ; and they also allege that they are taxpayers toa | unt, by reason of their ownership of this and property in the city. They then state that previous the presenting ef their complaint, the Boards of Alder- Assistant Aldermen of the city, in opposition to of the Mayor, and in violation of the injunetion ighest court, passed a resolution by which authorisedypnd granted permission to, the defend- to lay ad double track for a railway in Broadway, ‘Whitehall or State street, from the South ferry to Fifty-ninth street, and thereafter to continue the same, from time to time, along the Bloomi Toad to Man: hattanville. There were certain conditions attached to ‘this grant, to which itis not now necessary to allude, there are certain allegations contained in ee complaint as to the circumstances under which fhe authority and permission were granted, which it will be nesessary to consider hereafter. The plajn | tifa then insist and contend that the Mayor, | Aldermen and Commonalty of the city, have no right by virtue of their corporate powers, either as established their charter, or copferred upon them by the Legis Jature, to authorize the railroad in question. They fur. ther insist that, owing to the peculiar situation of Broad- way, both in reverence to its width, and its use for gene- wal purposes axa street, the proposed railway track, if permitted to be used as the defendants intend to use it, ‘will become a nuisance. They also contend that the right to use the street in the manner proposed can only Be acquired by an express authority, delegated by the | movereign power of the State, by virtue of the right of eminent domain, and that it would be necessary, as a | eondition precedent to the exercise of such authority, ) compensation to the owners of the adjoining | U REEL! tle 4 i HE tht be §3 2% 5 LEE 3 make propert . And finally, they contend that the grant to defendants has been corruptly and illegally mate. | jpon these grounds they pray for an injunctioa to pre- vent the grant from being carried into effect. 1 conceive that the question as to the general power of the Corpo gation to authorize the laying of a railway track in the ity has already been settled in the case of Drake ys. ‘Be Hudson River Railroad Company (7 Barb. 528). As Ihave already understood that case, there were two geestions distinetly passed upon, decided by the First, that a railway in’a city is not per se a muisance ora Maog se and, second, that the Corpo- zation of the city of New York has the power and right to authorize the use of its streets for that purpose. centended upon the argument that the ease before us is @etinguishable from that, because in that case the Le gislature had, by its charter to the Railroad Company sutborized it to carry its road into the city. But it will be observed that this authority is rinde to depend entire upon the assent of the Mayor, Aldermen, and common- ‘of the city. The corporate right, as an artificial ex- to receive the benefit of the assent o: permission | ‘thus given, is all that was granted by the State. The sight to use the streets of the city came entirely from ‘the corporation of the city. So in the case of Plant vs. The Long Island Railroad Company, (10 Barb. 26,) it was held that the corporation of the city of Brookiyn, whose powers do not differ essentially from those vested in the stion of this city, had the right to authorize a rail- | eompany to tunnel a public street for the purpose | oo lazing a railway track. And in the case of Adams vs. | ‘The toga and Washington Railroad Company, (11 | Barb. 414,) a ot itehall, twas ; similar power was recognized in the village . (See also Chapman vs. The Albany and | jady Railroad Company, 10 Barb. 360.) In each ‘ef these cases the recipient of the right or thing granted was a body corporate, created by an act of the ogi are; but in every case the right or thing granted was given by the city or village corporation, by virtue of its Several powers over its, streets. The next ground upon plaintiffs claim that the laying and using of the railway track in quest‘on will be illegal is, that it will be a nuisance. 4g has been already seen, it was set- cited, that a railway’ ina city is mot necessarily a nuisance. But no one can doubt that, it might become so. If, for example, a railway, with a double track, should be'laid @own in some of the narrow streets’ of this city, which are, even now, inadequate to the public wants | for Dusimesss’ purposes, it is apparent that the public use would necessarily be impaired, if not entirely ebstructed. laintiffs contend that this ease is also anexception to the general rule. But I do not think that the facts presented in the papers before us warrant gach s conclusion. And it seems to me that no one will seriously deny that the track in question might be used, or rather I will say, that there is no ccgtaintay that it sronld not be used,'ia such a way as materially io impair and obstruct the public right of passage and re-passage Through and over the street. But such a possibility ‘not be sufficient to authorize the interference of fhe Court at this time. The next ground upon which A i | the | of property of some kind. It is ® property held the plaintiffs claim that they are entitled to the inter ference of the Court is, that they are owners of the fee to the centre of the street, subject only to the public right of way, and that the street cannot be taken for the rail- way until compensation is first made tothem. The on which they claim the ownership of the fee are, that they are seized in fee of the lots adjoining the street, and they contend that. from this fact, the law their ownership ad medium filum via, aud that the burden of proving the contrary rests upon the de- Sendants. The defendants, on the other hand, have in- troduced an affidavit of a dis.inguished member of the | who, it appears, has been employed by the tion, and for some time past has been en- in preparing a digest of the ancient re- @ords, in reference to the title of the Corporation to the streets of the city. This affidavit is, to a considerable extent, argumentative, and consists of a | statement of facts, with inferences and conclusions; but | the facts stated are sworn to be true upon information | and belief. Assuming al! the facts stated to be true, | still I am not pre to say that it is shown that the | | | | See of the lands in Broadway, above Wall street, is vested im the Corporation of the city. Neither am I’ prepared come to a different conclusion. On the contrary, after edareful reading of the affidavit, and after hearing the tement made by the venerable and learned counsel whe argued this motion on the part of the defendants, it | ‘would only be upon the most thorough examination that come to the conclusion that the fee of the streets vested in the Corporation, as, for manifold reasons, that it ought to be—in trust, however, for the benefit—as all the streets, laid out and opened act of 1813, are. But with the view which I ve taken of this case, I do not ednsider it necessary to adjudication to determine who is the owner of the fee. nsel for the plaintiffs referred us, in their argu- 0 the numerous decisions which have been made State, in reference to the right of the adjoin- owner to the soil in a public bighway. There i abt that, according to the ancient rule of the com- \w, which, as far as I am his Sisto, the public have in the country than that of passage and re-pas- and that any interference with the soil, other than be as necessary to the enjoyment , will be considered a trespass, and an action in favor of the owner ofthe fee. It is upon this pe that the trustees of the Presbyterian Society in jater! The Auburn and Rochester Railroad Compa Hil, 667,) was decided. But there is a wide dif- | a highway in the country and a street in gee ee EF 8 $ ss HI 3 o city. The reason for the restrict ‘use of highways in the country has been, that they | Ihave been for no other pury but such is not ‘the case with streets in a city. ere to which, in modern times, the latter have generally been a |. These uses are not merely conducive to, but they have become almost necessary for the eomfort, health, and prosperity of the public. They have been sanctioned by custom, and app by experience. By the Dongan charter, the then existing streets within the | @ity were expressly granted to the corporation, together with the power ‘of ls ing out such streets in future as Might be necdful and convenient: and the general contro! ef the streets, as anch, has always been vested in the ‘eorporation, as the protector and manager of the pub- We right for the common benefit of all. Those , for many years, have been used for the construe | ‘tion of sewers, and for the laying of water and gas pipes, | and no one has ever seriously questioned the rizht of the eity to authorize their use for such purposes, and no ad- | Joining owner, as far as tam aware, ever pretended to elaim compensation for such ues. These urban ‘tudes, dents ey have been called, are the necesaary inci street in a large city ; and whether the streets be laid out and opened upon property belonging to the Se or whether they became public streets by tion, or by grant, or upon compensation being made certain uses to the owner of the fee, they have all the incidents at. tached to them which are neosssary to their full enjoy- | as streets, It is an elementary principle of the ww, that where a power, right, or thing ts granted, ther toa natural or an artificial person, all the inci dents are granted which are necessary to the enjoyment Of the power, right, or thing. And whether the corpo- ration be the owner of the fee of the streets in trust for the public, or whether it be merely the trustee of the streets and highways as such, irrespective of any title to the soil, it has the power to authorize their appro priation to all such uses as are conducive to the public ocd, and do not interfere with their complete and un restricted use as highways; and, in doing so, it is not obliged to confine itself to such uses as have already an Pigg er As civilization Oe oe uses found expedient. It was upon this princi ple that the existing railways in thi cit and in Alba ay , and the tunnels in the city of Brooklyn and inthe tinge of Whitehall have been. sanctioned. The next ion is, whether the corporation had the right to make the grant, under the circumstances and in the man- mer that they have done. The Mayor, Aldermen and Commonalty of the city of New York ‘are a public muni cipal corporation, existing originally, perhaps, by eustom, ‘Dut at an early iod authorized by a written charter. and since by tive enactment. A public municipal eorporation ie always created for political purpows. It da invested by the sovereign power with subordinate legis- lative powers, to be exerci Ite are subject te the control of the Legi-lature Gtr con’ People vs. Morris, 13 Wend., 325 ) chartes is not a contract, within the meaning of the | tion of our property.” within certain loes! limits. | b be Ss) "Tt hes the power to make laws for ita without apy ex] grant. eo 3 vg ere, vested, i 28 i re it of or by laws in apy other pany, 2 Williams, 207) In the present case we are not t to ‘Mon’ confers upon York, the power to make such laws as to thew, or the greater part of them, shall seem to be good, useful, or necessary for the good rule and government of the body corporate. Thus it will be seen that ts in exercise of its public polit powers, and within the limits of its charter, it is vested with the largest discretion. And whether its laws are wire or unwise, whether they are passed from or bad mo- tives, it is not the province of this court to inquire, But, as regards the acts of the corporation in reference to its private property, it stands upon @ very different footing. Such property is held for the common benefi: of all the corporators. In egg te that, the corporation is with high duties. It isthe depository of a trust which it is bound to administer faithfully, honestly, and justly. Amd no one will contend that the body of men who, for the time being, may be its duly autho: | sentatives, can legally dispose of its property of’ great value, without any or for nominal consideration; and if they shall fe to do 80, it will be no exease for such agross and unwarrantable breach of trust to say that they acted in their legislative capacity—for the very simple reason that they will not act in that capacity. They will be acting in reference to the private property of the corporation, and, in this respect, will at upor the same footing as if they were the representatives of a pri- yate individual, or of a private corporation. The mere fact that the forms of legislation are used will make no difference in the character of the act. It will be in no sense the exercise of a political power delegated for pub- lic purposes. If the mere form of proceeding defined the act, then it might be said that most of the acts of pri ations are legislative acts. Banking corpora- te cor GBs, rallrond and insurance companies, have 4 board of directors, and a President, who transact the business of the company. They have their regular meetings; they | have s presiding officer, and their deliberations, diseus- siong, and proceedings, are conducted more or less ac- cording to parliamentary rules. But no one ever supposed that any of their acts were of a legislative character; and for the obvious reason that they have reference to’ pri- vate property. When a public corporation acts in reter- ence to its private property, its acts are equally of a vri vate character, and equally subject to judicial control. If a different doctrine were established, the Mayor and Aldermen of the city of New York, might at the next meeting of the Common Council, distribute the whole of property owned by the city among themselves, pro- vided that they adhered to the ordinary forms of legisla tion, The distinction which I have taken is ax well sus- tained by authority as it is by reason and principle. In the cace of Frewin vs. Lewis, (4 Myine and Craig, 240,) which was a suit against the Poor Law Commissioners, who are a quasi public corporation, Lord Cotteaham, in giving his opinion, said, ‘80 long as these functionaries strictly confine themselves within the exercise of those duties which are confided to them by law, this court will not interfere. The court will not interfere to see whe- ther any alteration or regulation which they may direct is good or bad; but if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this court no longer considers them as acting under the authority of their commission, but treats them, whether they be a corporation or indivi- duals, merely as persons dealing with property without al authority.’” In the case of Bailey vs. The Mayor, &c., w York, (3 Hill, 531,) it was held that the Croton Aqueduct was a part of the private property of the city, and that, in regard to such property, it stood in thefsame light'as an individual owner, and was subject to the same liabilities. In the Dartmouth College case, the same distinction between the public powers of a mu: nicipal corporation and its private property wai recog- nized. In the case of Moodalay vs. The East India Com- pany, (1 Bro. Ch. R. 469,) the Master of the Rolls, in speaking of the defendants, said, ‘ They have their rights as a sovereign power; they have also duties as individu- als. So, in this case, as a private company they have entered into a private contract, to which they must be liable.” And in the case of the Attorney-General vs. the Mayor of Liverpool, (1 Mylue and Craig, 171,) the Master of the Rolls says: ‘Mf property is held’ by a corporation as a trustee, if the corporation holds it clothed with pub- lic duties, the court bas always asserted ite right to in- terfere.””” Before proceeding to the application of these principles to the case before us, it will be nesessary to determine what is the character of the grant maie by | the corporation to the ¢efendants. Their counsel call it the grapt of a permission. But this conveys no definite idea. The grant of lands is the it of a permission to have the absolute and unqualified ownership of chem. A lease of a house is the grant of a permission to use and occupy that house for a limited time. In order to deter- mine what the co tion has done, it will be necessary to ascertain what is the character and effect of this per- mission which it granted. According to the provisions of the resolution passed by the Common Council, the cor-. poration has granted the permission and authority to lay a double railway track in Broadway. For the purpose ot laying this track, it will be necessary that the defendants shall, for a time, take the exclusive possession of a part of the street—that they shall place a structure there of their own construction, which shall belong to them, and of which tox shall have the exclusive use, as far as it is used for a railway. In my judgment, it is immaterial what particular pame is given to this thing which is thus granted. Whether it be a thing corporeal or incorporeal, or whatever be ita eorrect legal designation, it is a species the city, and is subject to the same trusts and duties ie ether property. The question then arises whether the corporation has violated its duty as a trustee in making ‘the grant in question. It will be observed that the de- fendants have paid nothing for the grant, and that the only amount which they will be bound to pay to the city will be the annual license fee for each ear which is now allowed by law, and they have agreed that no higher rate of fare shall be charged for the conveyance of passengers from any one point to any other point along the route, and such combined system of routes as may hereafter be adopted by means of cars and omnibuses, than five cents for each passenger. It is stated in the complaint, and it is not denied, that six offers were made to the corporation by other parties than the defendants, and the complaint alleges that one of them, if accepted, would produce a sum exceeding $250,000 per annum for the benefit of the corporation, and the relief of the tax- paying citizens, while each passenger would be charged but five cents fare. That another offer, if accepted, | would produce a sum exceeding $300,000 per annum, for tne “benefit of the corporation, while each Parenger would be charged but tive cents fare. hat another offer, if accepted, would produce the sum of $100,000 per annum for the benefit of the cor- poration, while each Pessenger would be charged but five cents fare. That another offer, if accepted, would produce the sum of $1,000,000 for the benefit of the corporation, while each passenger would be charged but three cents fare. That another offer, if accepted, would produce the sum of $150,000 per annum for the benefit of the corpor. ation, while each passenger would be charged but three cents, and, finally, that an offer was made, in which the parties agreed to comply in all respects with the terms and conditions set forth in the resolutions by which the grant was made to the defendants, with tie exception, | that instead of charging five cents for each passenger, they would charge but three, The defendents do not de- ny these altegations, but they have submitted an afiida- | ¢, vit sworn to by two of them, in which they say, that either of these offers, if accepted and carried out, would have been less burthensome to the grantees in the | amount of money expended, and less beneficial to the citizens than the grant made to the defendants. And they state, as one of their reasons, that none of the offers which were refused, excepting one, proposed to take the grant upon the same terms and conditions an the grant made to them. But what are those terms and conditions? tions that ner of laying the rails, and construct and mana; the cars, which would not be onerous to the grantees, a: which would be adopted by any one, almost as a matter of course, The only important provision is that which relates to the sweeping of the street. But the expense of carrying this ores into effect would amount to a sum very far less than that which the other parties to pay to the corporation. They next state that the offer which proposed to take the grant upon the same terms and conditions as were agreed to by the defendants, was not accompanied by any purchase, or offer to purchase, the lines of omnibuses now established in Broadway, whereas they allege that they through their representa” tives, had made contracts with six of the princioal omni- bus lines in Broadway, owning two hundred and forty-one omnibuses, to buy out their lines, for the purpose of with- drawing the omnibuses from Broadway, and with a view of transferring them to transverse lines to ran incom munication with the railway. But,if they had made these contracts, why had they done so? The bound by the terms of the grant to make these or any similar contracts. They say in their affidavits that they made the contracts ‘asa measure of justice and proper public poliey.” Was it from a role regard to these con- siderations, or was it pot rather from a regard for their private interests? The affidavit itself undoubtedly states the true reason—‘‘it was necessary’ to the sut:essful working of a railway in Broadway at all."’ And is it not a just conclusion that the same motives of self-interest which iafluenced the defendants, would have induced the grantees, whoever they might be, to do the same thing? But itt id that thore offers were not made in good faith. cer which they were made. They were made by the owners of property upon Broadway; by parties who had zealously opposed the railroad, because they believed that its construction and uses would be injurious to their be injurious to their property. They had appeared be fore the Common Council and urged their objections: and when they found that their opposition would be unavail- ing, they said, “then give ns the grant. We believe that it wil! be exeeedingly valuable. We are willing to pay @ liberal consideration, and we believe that in this way we shall derive some compensation for the injury which we think that we shall snstain by the deprecia u They said this at that time, and they say it now ; and in this, I can see neither incon: tency nor bad faith. But it is said, and some conversa- tions are stated in the defendants’ affidavits for the pur pose of showing that the other parties intended, in case they received the grant, to allow themselves to be resirained by legal proceedings from carrying it into effect. I suppose that the question whetier they would be restrained or not, would depend upon the question whether they were proseeding illegally or not ; whether applied to them, or to the defendants, or to uny one else, But it is suid that they would have allowed an injunction to be obtained, and would not have moved for ita dissolution. | Suppose that they had, would that bave defeated the rondy Wo discharge of it# duties, have allowed what it believed to able work, highly beneficial to the publie and of great wlvantage to the city treasury, to be thus arrested Or would it not bave defended the grant which it me ‘ mole, in care i¢ became pecoseary 0 Co 807 It will be seen by reference to the resolu- | are, generally, regulations as to the man- | were not | The papers before us show the circumstances un- | and that the rule of law would be the same | ald the Corporation, in the proper | which was the question is not, as the defendants seem to suppose, as to what amount of burthens have powe onpunee Wy the grantees. But even if it were, it seems, from thei own showing, that they have received, or will receive, a nivale tn sales Sie the Dextaomncneion they here terested! is, have aecrued to the eity been the tax re would been extent tow! ‘the public treasury weuld have been ben- efitted. But it was said upon argument that the Corporation had no right to receive any compensation If they nad the right to make the grant, they had the right to be paid for it. The power of granting a thing im- pe e right to attach conditions te the grant; and it s immat whether the grantor be a corporation or an individual. One of the reasons given on the argument why the was Corporation could not receive compensation, that it had been deemed necessary to apply to the Legislature for express authority to license hackney coaches. But there is no aval between the two cases. The act of 1813 gives to the Corporation the power and authority to te hackmey coaches or carriages, and the owners and drivers thereof, and their tates of fare or carriage, requiring the owners of such hackney coaches or carriages to have a license the Mayor of the city, under the direction of the Common Council. And it further provides, that whoever obtain such license, shall pay therefor a sum not exceed- ing five dollars for each hackney cosch or carriage, to be applied to the support of the of the city—(2 Laws THs, . 440) This eet, it be seen, merely gives a power to make @ police regulation, accom, a power to levy a tax upon eertain species of property for a particular purpose. It neither gives, nor does it profess to give, the power to receive eompensation for any property granted, or for the granting of any right which the etty already possessed the power to grant. The conclusions to which I have arrived, fer the rea- sons which have been stated, are, that the corporation, in making the grant in question, was guilty of a clear breach of trust, and that this court is bound to prevent the grant thus illegally made from being carried into effect. ‘The next question to bo considered is whether the suit has been brought by the proper parties. It was held at a general term of this court, in the case of Christopher ys. The Mayor, &e., of the City of New York and al., that a tax payer in the city might restrain the Corporation, and the parties claiming under them, from doing an act which amounted to 4 breach of trust, and which was injurious to the party asa tax payer. The rule of the commen law, as established in England, was, that in cases where an act was done by a corporation, which was not particularly injurious to any individual corporator or corporaters, it was neoensa- ry for the parties who felt aggri to relate their grievances to the officer of the crown, who might, if he thought the case a prover one, file his information against the corporation. In such a ease the suit would be brought in the name of the Attorney General, on the relation of the parties complaining, instead of being brought in the vame of the partics themeelves. But even in England it has been held that although the pi must be by the Attorney Gencral in « case where all par- ties interested were parties to the abuse, yet that where such was not the case, it was not necessary that he should ve before the Court.’ (Bromley vs. Smith, 1 Simons, 8.) I think that the plaintiffs in this case, being tax payers toa large amount, have such an interest in preventing the grant in question from being carried into effect, that they had a right to institute this suit in their own names; and I am of opinion that an injunction should be ‘issu against the defendants, in pursuance of the prayer of the complsint. Judge Edwards then said that Judge Strong one of his associates, who heard the argument, was not able to be present, but had requested him to state that he concurred with the decision just now delivered. He (Judge Strong) will, at a future and not distant day, reduce his opinion to writing. SUBSTANCE OF THE DISSENTING OPINION OF JUDGE I th my brethren up to. certain point, W agree with my brethren up toa certain point. We all agree that the Common Council have authoriiy to au- thorize the laying of railways in the streets of the city ; that a previous act of the Legislature for that purpose is not necessary ; that a railway is not in itself @ muisance, and that there is no evidence that it would be a nuisance in this particular case. But we divide upon the point whether, in ithe eaerelae of this power, the eorporation ain using its private property or exercising a governmen: fs , that in acting in this case, the Baga ing of its private rty. I ie corporation is disposing of vate property. think that it is exercising a legislative end” poiltical wer. And in assigning the reasons for my conclusions, will first consider the second point preseated by the plaintiffs. That point is this, that— Making the grant in defiance of the injunction ont of the Superior Court, was an illegal and crimiual act, which would confer no legal right on the grantees. Tconrider this point, first, not only for the reason that the decision of it in favor of #he plaintiffs will ioternaine this cause, and require that the injunction should be made permanent, but also because ‘a correct decision upon this point is of more importance to the well- being of this city, and to our citizens, collectively and individually, than’ would be the benefit or injury to them of any railway in Broadway, or in any other street | of the city. In this connection, I present a series of facts admitted by the parties to ‘this suit, viz.:—On the 19th of November, 1852, the Board of Aldermen of the city of New York, acting in its capacity as one branch of | the legislature of the city of New York, passed the fol- | lowing resolution, viz. :— Resolved, That Jacob Sharp, Freeman Campbell, (and | twenty-eight others who are named in the resolution,) and those who for the time being ma} associated with them, whom are herein designated as associates of the Broad | Way railway, have the authority an sent of the Cominon | Council to double track fora railway in Broadwa; Whitehall or State street, from the South ferry to Fifty- | ninth streot, and also hereafter to continue the same, from | | time to time, algng the Bloomingdale road to Manhattan- | ville, which confinuation they shall be required from time to | time'to make, whenever directed by the Common Counoil, t id grant of permission and authority being upon and vith the following conditions and stipulations, to wit. Here follows filteen stipulations, which, for the purpose | of the point now under consideration, it is unnecessary to notice. On the 6th of December, the resolution was also passed by the Board of Assistant Aldermen, and di- rected to be sent to the Mayor for his consideration. On | | the 18th of December, the Mayor returned the resolution | with his objections to the Board Aldermen, where it ori- ginated. The effect of this veto of the Mayor was, that the Board of Aldermen could not proceed to reconsider the resolution before the 29th day of December, 1852. On the 27th day of December, Judge Uampbell, of the Superior Court, upon an ex parte application made ‘to him by Thos. F. Davies and Courtland Palmer, granted an injunction against the Mayor, Aldermen and Cominonalty of the city of New York, in which is the following clause:— 1 do hereby command and strictly enjoin the defendants, the Mayor, Aldermen, and Commonalty of the ¢ York, thelr counsellors, attorni i and all others acting in aid or as: and every of them, that they and each of them do absolutely desist and refrain from granting to, or in any manner au thoriaing, Jacob Sharp and others, (the persons named in the | resolution.) or their associates, or ‘any other person or per- sons whomsoever, the right, liberty, or privilege of laying a | | double or any track for a railroad in the street known as | Broadway, in said city of New York, from the South fer; to Fifty-eeventh street, or any railroad whatsoever in sai way, and from breaking or removing the pavements in reet, preparatory to or for the purpose of laying or lishing any roilzond therein, until the further order of court, | “And that the defendants show cause at the Special Term | of this court, to be held at the City Hall, in the city of New | York, on the second Monday of January, 1863, at the openin, of the court on that day, or as soon thereafter as counse can be heard, why this injunction order should not be made permanent. ‘There are rome considerations connected with this in- junction necessary to be here stated. Ist. It not only prevents the Mayor, Aldermen and Commonalty giving | said | the permission to the persons named in the resolution, upon the terms specified therein; and the stipulations at tached, but absolutely prevents the Mayor, Aldermen and Commonalty from giving permission to any person or per sons, upon any terms, to lay rail track in Broadway. With this injunction upon them, (if it is legal,) they could not give the permission to the other gentlemen mentioned in these proceedings, who offer such favorable terms to the tax-payers and citizens. Again, the order to show cause was returnable the second Monday of January | 1863—which was the Oth day of January_—being, cevera days after the expiration of the term of office of the then | Mayor and Common Couneil, and within which they could act on the subject. The consequence of this injunction, (if legal,) would be to postpone the consideration of the resolution until those who could act uponit, if they de- sired to do so, were out of office, and when’ the parties appearcd to show cause, although the court might decide | that the corporation had a perfect right, and that it was | their duty, to pass the resolutions, till'the court would have no more power to restore the resolution, or to repair the injury caused by the act of their aszo- ciate, than they have to resussitate the dead. On the 28th of December the injunction was served upon the Mayor and some of the members of the Board of Aldermen, and on the 20th upon other members of both Boards of the Common Couneil. On the 29th, the | Board of Aldermen, and on the 30th, the Board of Assist ants, by the votes of a majority of their respective mem | bers, passed the resolution, notwithstanding the injunc | tion, which act is the one mentioned in the plain- | tiffs’ second point as ‘illeyal and crimmal.” To | | prevent any misapprehension let me state :—The | Superior Court and the Court of Common Pleas of the | | city and county of New York, and their respective | judges. have precisely the same equity jurisiietion, and | ‘the power and right’ to issue injunctions, that the Su | | preme Court of the State and its justices in this district Possons. As regards the elty and county of New York, eir equity powers and ours are concurrent. Therefore, | although the adjudications of those courts are not au. | thority binding upon this, yet they are always referred to with the greatest respect, and followed except in cases where we are constrained to differ upon principle. 1 will now give some extracts from the opinion (furnished to us by the counsel for the plaintiffs) of Judge Duer, de livered in the injunction care, showing what acts the in- junction was intended to prohibit, and the acts commit- ted which, in the opinion of the court, constitute the | contempt and the extent of the power ciaimed by those judges over the legislative action of the Common Couneil | of the city of New York. Judge Duer states the in | junction order is the same as though | It referred to and recited the resolutton, and by express vee aie forbidden the Common Councll to reconsider aud ‘gain — T rhall treat the resolution as an ordinance, o: naideration and adoption as, properly, on in the fullest sense in which Yo ly applied to the acte of Again — Every Alderman who voted for the resolution, with the in. | | tent thacit should take offect as @ corporate act, had given his aesent, Every one of them, therefore, who jim# thus as- rented—the conclusion is plain and irresistible—has done the ct that the order of the court commanded him not to nd by 0 doing hus authority, plated ity mandate and eontomned | are) | pel them to vote against it, | Couneil, and no judge e Again — I Add thet, even vpon the eopposition thee phey werg recousilerod, if the or- a w of ite der of the court wae in truth issued in the exercise v7 that the Superior Gout of Common tion of judge, sueh act aa ee iewal iene judge, act wor e and consequently void. The ude, iets opinion, also ration and its mem- states » notion commanded Recretaly tren ths picteremies’ of aa nd. if this command could wader no sir. stances be rightfully by & count of equity municipal corporation, the Common Couneil and ite members the just nee of their own rights, were bound to re it. "the words which I have italicived present the ques- tion ‘which this Court bas under consideration, ‘viz : Was the injunetion of Judge Campbell in truth issued in the exercise of bis proper jurisdiction? If it was not is- nued “in the exercise of proper jurisdiction,” then, in the lai of Judge Duer, ‘‘the Commen Council and its mem! , in the just maintenance of their own rights, were bound to it,” and their voting in the af- firmative was not ‘an illegal and criminal act, which could confer no right.” This leads to two questions— First, what kind of @ corporation is that of the city of New York? Second, what are ita powers? The Mayor, Aldermen and Commonalty of the city of New York, ares municipal tion, created for governmental pur- poses, possessing, however, incidental thereto, in mun: respects, the character of a private ratien. This corporation has two separate and series of cor- porate powers, rights, duties and responsibilities. The one, that of a government, of which I will speak hereaf- ter; the other, that of a private corporation, which I will now consider, because it is necessary for thepurpose of intelligibly defining the line between its property, liabi- lities, duties, and objections, as a private corporation, and its powers, franchises, rights, jurisdictions and im- munities as a government. The charter of the sity, (Kent's Notes and City Charter, 14, section 2,) grants, rati- fies, and confirms to the Mayor, Aldermen, and Common- alty of the city of New York ‘The City Hall or State House, with the ground thereto be- longing, two market houses, the bridge into th new burial place, and the aforementioned ferry, and every of their rights, member ther with all the protits, b ‘or may acerue and arise at all ti or wharfage within the anid dock, with ull and’ singular the rents, issues, profits, gains and advantages which shall or may hrise, grow, or accrue by the said City Hall and State Mouse, bridge, dock, &e. The rame authority, (page 16, sec, 8,) grants to the Mayor, Aldermen, and Commonalty, &c., “All the vacant within the ‘city of New York and on Manhattan Island, extending to low watermark,” &¢. Page 48, ‘‘to lay out their grounds and build upon them,” ‘The Montgomerie charter recites and reaffirms the grants of property before mentioned, and grants vacant Jands on both sides of the East river between high and low water mark,and power to establish as manyferriesas they please. Pege 142, see. 37, renews these grants, and makes addi- tions to them. All these grants the Mayor, Aldermen, and Commonalty hold ax trustees for the benefit of the citivens at large. As rogards this property the corpora- tion is a private corporation, trustees for the citizens; and, in relation to it, may be sued in the same manner as private corporations, ‘and their agreements in relation to it, their sales and leases of it, may be governed and controlled by the courts by the same process, and in the same manner, that our courts deal with and ‘control cor- porations of bamks, insurance companies, and village li- praries. Chief Justice Nelson, in the case of The Mayor, Aldermen, and Commonalty of the city of New York, administrators of Joseph Britton, says : ‘The charter of the city of New York confers upon the defendants many powers and privileges that belong to them in common with private companies or individual citixens, which they hold and enjoy in the capacity of a private cor- poration. Thus they are declared to be able, in law, and capable, to sue and be sued, implead and be impleaded, &c., in all manner of actions, ‘suits, complaints, pleas, causes, &o., in as full and ample a manner as any citizen, &v. ‘The charter also conferred upon them ‘the ferries on both sides of the Enst river, and all others then or thereafter to be erected and established all round t i ‘These grants, and many others that might be enumerated, constitute a large mass of private rights aud interests in Yerious descriptions of property, c., ‘" held and enjoyed by the city in the same way, and in common with any citi- xin upon whom like propetty and franchises might hi been conferred; and within the limits of the grant, the feudants may deal with the property, in. their manager and disposition of the same, in any way that would be law- ful for an individual owner; and any contracts or engage- ments entered into in the course of such management and disposition, would be as obligatory upon them as upon an individual.” the ‘case of Bailey against The Mayor, Aldermen, and Commonalty of the city of New York, the Supreme Court of this State held— That the grant of the Legislature, authorizing the city to furnish the city with water by means of the Croton aqueduct, ‘was the grant of a private franchise, made as well for tho private emolument and advantage of th as for the Public good; and that the defendants, quond hoc, wore to he regarded as a private company, and to be dealt with accord- ingly. fo ihe Berrian Island case, tried in this eourt, in which Justice Edwards delivered the opinion of the court, sus- taining the injunztion against the corporation, and in the Washington Market case, in which the opinion was delivered by Mr. Justice Roosevelt, sustaining the injunc- tion, the corporation were held to be, quoad hoc, & pri- vate company, and were dealt with accordingly, because in both cases the subject matter of the controversy was the private property of the corporation. The Mayor, Aldermen, and Commonalty of the city of New York possess ancther and very diferent and mere im- portant power—a governmentalg power. This power is conferred by the charter, and alo by various statutes They may pass laws for the government of the people, and enforce obedience to them by fines and penalties. Their control over the streets and highways, their right to do anything in relation to the streets, or to order it to be cone, or granting permission to others in relation to streets, is embraced in this governmental power. This litical governmental power, is limited, and subject to Phe control of the legislative’ power of the State ; but to the extent of the power delegated te them in their exer- cise of it, and the immense discretion that is conferred with it, they are as exempt from judicial interference, dictation, and control, as is the State ment itself : and for the same political reasons, to keep separate and distinet the three departments of government—logisla- tive, executive, and judicial—so that neither shall in- terfere with,’ dictate to, or control the other. This separation is necessary that the people may, through the in of these departments, be protected against » usurpation of arbitrary power by either. So long as these three departments act inde pendently of each other, liberty to the eitizen is a prac- tical existing principle; but the moment one of them absorbs the cther, or a3 soon as the judiciary cam compel the legislative body not to vote upon a question, or to vote in accordance with its dictation, by imprisoning those members who refuse, this ‘ictatorial power bee comes the government, and if the citizen does not feel oppression, it is only beoause there is no immediate rea- son for its exercise. By the charter of the city, and by statutes of our State Legislature, extensive and’ impor- tant governmental powers are given to the Mayor, Alter. men, and Commonalty of the eity of New York, in their capacity as a municipal corporation. In relation to the exercise of these powers to the extent delegated, they are subject only to the Legislative action of the State, alter- ing, modifying, or revoking them, and to the judicial tribunals of the State, acting only in the same manner that the judiciary can aet against the officers of the State, and against the laws of the State. If the Legisla- ture of the State is about to enact a law palpably uncon- stitutional, the judiclary cannot legally issue an injunc- tion to prevent members voting for the law, or to com- er the bill has received all the forms to make it law, and is attempted to be ed as a law, the judiciary, by injunetion, may, ins proper case, stay its application, upon the ground of its uneonstitutionality. So, also, if the Common Couneil are about pasting a law or ordinance that is either uncons tutional or beyond the charter or the laws of the State, the jadiciary cannot in- hereafter, for dockago terfere with the action of the members by ‘injunction. But afler an ordinance has received all the sanc- tion that the Common Council can give to it, then the courts, either by injunction or by other igs, as may be required in the particular case, may declare the ordipance to be void by reason of the want of authority to enact it. If, however, the Legislature of the State have the constitutional power e subject, and the Mayor, Aldermen and Common- alty have the charter power to pass the law or ordinance, the entire discretion as to the details of the law or ordinance is vested in the bn enya or in the Common or judicial tribunal has a right to interfere because they may be of opinion that such dis. cretion was unsound, et, erroneous, or even corrupt. If courts were permitted to interfere with the discretion of the law making power, then it would be at the discretion of the judges, and not of the legislators that made the laws, for no’ law could exist unless it | nquared precisely with judicial ideas of what was dis- creet and proper. It wil received, upon an examina- tion of the charter, and of the statutes in relation to them, that the streets are under the control of the Mayor, Aldermen and Commonalty, as a government, (unlike the ferries, the City Hall, the lands. plers, docks and slips, &c., which belong to them as a private.corpo- ration). The’ streets are expresaly declared to be “for the use and serviee of the said Mayor, Aldermen and Commonalty of the said city, and of the inhabitants of Manhattan’ Island aforesaid, and travellers there.” ‘ (Kent, Com, Ch, 14,15.) Therefore, giving the corpora ticn the power to lay out new streets, and to alter and repair streets, makes them the judge of what is neces- sary and convenient for all inhabitants and travellers there. Chancellor Kent, in his Notes upon the Charter, page 236, note xxxi., states : ‘The sixteenth section gives to the Common Council power to ostablish, direct, lay out, alter, repair and amend streets, lanes: alleys, highways, water courses, aud bridges, through out the city and island. This is a grant of a public terest, or property, or reven' always continued with the Comm active exercise, subject, neverthol tive interference And direction. Chief Justice Nelsen, in his opinion In Britton’s case, before referred to, apecltying ‘agreat number of the rights and privil eld by the corporation, as a private cc rporation, goes onto say:— These rights and privileges thus granted aro altogether dis- tinct and different from those with which the defendants are inyested under the charter as a municipal body. The latter class comprises @ large body of political powers, granted solely for public objects and purposes, with which the pri- vate iuterest and e#tate of the defondants, strictly speaking, havenoconcern. These powors are conferred for the boneht y, ond the ond sought to be attain- without any private in ected with it, and it has ‘ouncil, under free and at alltimos, to legisla: On looking an extensive grant of political power, legislative, executive, and judicial, which, #0 far as granted, represents these groat dep: f the State goverumen lodged with the defendants in their capacit ‘corpo ration, ‘The legislative power ommon Couneil. That body ix empo stitute a ordain, make and establish, from time to tim or statutes, ‘rights, ordinancet and constitutions, which to ood, the for them, or the greater part of them, shall soem to he -y for the good rule and government of Power is also given to inflict penalti f any ordinance or by-laws p by dy. The matter which was being considered by Justice Nelson wasa contract which a previous Common Coun. cil had made and which « new Common Council had re- pealed. The Chief Justice continued :-— Now, it certainly requires no argument to prove that, the powers of the defendants, brought into exercise in forming and entering hy t and stipulation in question, Providing fer ¢ i Shrtiid paren of tte lepiclanive and exces rt and parce: 0 e wholly ‘udepepdent and disconnected from 1 hority, particular jer delegated to them by the | their interest and company. ‘therefore cleat that the Common Council were bj "4 en iat \dsorstion Saal tee in the ise of wl judicial power legal Hight to interfere, Bor spy power except ture the State, a by ons act re pow- aitering the patiouler resolution or a od My con- therefore, is, that no court could legally inter. fere with the action of the members of the Common Coun- cil in casting their votes: that Judge Campbell had no jurisdiction to grant the injunction; that the members of ‘the Common Couneil were not bound to obey it, and that their disobedience of it forms no ground for the interfer- ence of this court. Having thus disposed of this part of the case, the question then recurs, can this court inter. fere with the grantees in the execution of this grant? The solution of that question appears to me to be in- volved in what I have ly stated, and = opinion is, that the form of the grant and its terms and conditions, were within the discretion ef the Common Council. The decisions are many and uniform that the corpora- tion basa right, as » government, to lay rails in the streets of the city. This being © tablished, one would su) there could be no question that, as a legislative boty, they have full power to exercise their own discre- tion in performing an act admitted to be witbin their power. My brethren think that they can enter iuto the question, whether the power has been wisely exercised or not. I think that it is not for us to decide; that the law has placed the decision of that whole matler with the Common Council, and uot with the court. There may be many considerations determining the decision of the Common Council that are not proper subjects of inquiry here—that, I think, is the anawer to the whole argument for this injunction. It is said that the great difference between the amount received from these grantees, and the amount by others, is such as to give the courts a right to interfere, Ido not think so. I do not think that that difference, whether great or little, gives us jurisdiction. But I cannot omit saying that the streets, not being private property of the corporation, the corporation could uot receive money for the use of them. They could make no contract in relation to them that could not be repealed by themselves or their successors; and as the streets are public property, they could recoive no sum for their use not authorized by act of the Legis- lature. By the charter and acts of islature, the corporation are authorized to license hackney coaches andother vehicles carrying persons for hire, and to charge for the license of each sueh vehicle not exceeding — ‘this is governmental power to enable the au- thorities to have control over those to whom citizens entrust their persons and property. corporation have no power or authority te receive more than the Legislature of the State has by law autho- rized. In granting licenses to omnibuses, the Mayor acts as an executive office of the city. Should he, in the e: ercise of his discretion as such executive, determine | (which he certainly has the right to do, and which right, | has been frequently exercised) to license but one line of omnibuser for one street, and should charge that line the maximum price for each vehicle, and another applicant should then offer three times’ the amount for a li- cense te him, with an obligation to put on as | many omnibuses as the person to whom the Mayor was | about giving the license, would it be the duty of the | Mayor to accept that offer, and could the courts compel him to do so? It does not require much to show the ab- surdity of such a position. 1 cannot view this transac- tion of the Common Council in any other light than I would view the act of the Mayor in respect to such om- nibuses. I might illustrate this by a variety of other ex- amples, but I have said enough to explain the positions upon which I think this cause reats. My eonclusions | upon the whole matter are: first, that the injunction | out of the Superior Court was without jurisdiction and | void; second, that the Common Council has ample autho- | rity 'to authorize the railway in question; and, third, esting to THE RECENT PASSAGES OF THE CLIPPER sHIPs _JOBN GILPIN AND FLYING FISH. | On the 20th of Octeber and Ist of November, 1852, these twe noble ships took their departure from New ‘York, for the far off and distant port of San Fraaciseo, in California. ‘To guide and direet them upon their course, eaeb ship: was supplied with a set of Maury’s wind and current charts, as well as @ book of sailing directions, conipilen. as they have been, from thousands of abstract journals in his possession, at the Observatory in Washington. Both ships made extraordinary passages, and we collect and compare their journals for the information of uture pilgrims over that waste of waters. ‘The John Gilpin had the start by two days, whieh Capt. Doane employed, as well as several suceseding ones, in running off to the eastward. The Flying Fish leaving port. on the let of November, Capt. Nickels, after ebtaining ¢ / good offing, steered off to the south and east, in almost a direct line to where she crossed the equator, upen the | 4 , meridian of 34.30, While one ship was to the castward of Maury’s track, the other was almost equally far te the westward, and we contend, tnat if they iad followed his , route more strictly, with the winds which it was their good fortune to have, they would have made tho shortest passage to California upon record By.a table.’ in Maury’s directions for the month of December, the shortest actual distance to be sailed by the route for that month, trom New York to the equator, is 3,918 miles. ” ‘The distance run by the John Gilpin was 4,087 miles, It is not known from the ubstrast of the Flying Fish how ) many miles she ran; but taking her latitudes and tudes, as well as those of the Gilpin, and Lieut. Maury’s, we find the one ship cast and the other west of the di rections, as follows A imate No.of Approximate No, ‘ Moury's Di iles the Position of Miles i ‘rections Gilpin the Flyin is * for De. Gilpin. E. of Mish. Fhe, Lat. Lon. Lat. Lon. Maury. Lat Lon. Maury. N. Ww. N. W. Miles. WN. WwW. Miles. 3912 7000 3910 67 26 140 3904 72 45> a 30 04 an 450 . 155 215 oo 120 209 z Equa. Equa- Equa- , 8204 tor, 8045 79 tor, 34.90 148 ‘The above are approximate distances; @ glanee at the table will sbow the position of the two ships upom the same parallels, and how far they re the one to the cast and the other to the west, from Maury’s dircetions, , in the north Atlantic, ‘The Gilpin, perhaps, erred uw the tafe side by keeping liis line under her lee ; but it doing so, sbe went over a considerable spaee which was nxt toa dead | hile her swift eompetiter, with tempting winds, made a bold dash in the shertest direc- tlon—she almost succeeded. On the sixteenth day out \ she was only a little upwards of 200 miles from the equa- tor; here she met the calms and baffling winds peculiar to that region. For four days Capt. Nickels straggled, but | struggled in vain, to get to the eastward, a westerly eur- * | rent netting him back alv ost as fast as he progressed, and | he had finally to give up and cross upon the meridian of » 34.30; Capt. N, again departed from the directions, for that this court cannot supervise and control the’ discre tion of the Common Council in respect to the terms and conditions on which, and the persons in whose favor, that authority should be exercised. The injunction should therefore be refused. | i THE SECOND AVENUE RAILROAD. Before Hon. Judges Edwards, Roosevelt, and Morris. Gerard Stuyvesant vs. Denton Pearsall et al.—The com. plaint in this case states that the Mayor, Aldermen and | Commonalty of the city of New York have granted to the defendants the permission to construct a railroad, | commencing on the Second avenue and thence running | through other avenues and streets of the said city. It further alleges that this grant was and is of great value; that it was obtained by the defendants without their pay- | ing anything therefor to this city; and that if the same | had been offered for sale, or if the railroad had been made by the corporation, and maintained and used for the benefit | of the city, it would, by the sale of the right to construct it, or by the income of the road, have produced large | profits and returns to the corporation, to be expended and applied in the support and maintenance of the city | betw government, and to the extent of many, thousands of lars. These allegations are not denied, and for the parroses of the present motion they must Be assumed to tras. it 4a also an admitted fact that the plaintiqs | are pro] olders x payers e city to a large amount. Upon,this state of facts, Tam of opinion, for the reasons which have been stated in the case of Milhau va. Sharp et al., that the corporation, in making the | grant in’ question, has been guilty of sich a breach of trust an calls for the interposition of this court, and that | an injunction should beissued against the defendants, in | pursuance of the prayer of the complaint. Judge Reosevelt concurred. Judge Morris dissented. ‘Theatrical and Musieal. | Bowsgry Tuxatre.—Mr. C. Burke, the celebrated Ame- | rican comedian, appears, for the first time in four years, | his evening, in two of his great characters, viz.:—Solon Shingle in the “People’s Lawyer,” and Dickory in the | “Spectre Bridegroom.” He will be supported by the | leading artists attached to this prosperous theatre. Mian Hiffert will ning a favorite ballad.” ‘fhe amusemen ba close with the drama ealled the “Murder at t BROADWAY TikATRR —The historical tragedy by John | Howard Payne, entitled “Bratus or the Fall of Tarquin,” | will commence the entertatnments this evening, Mr. For- rest appearing in his great character of Lucias Junius Brutus, Conway as Titus, Barry as Collatinus, Madame Ponisi as Tuli, and Mrs, Abbott as Tarquina. Miss | Price will dance a pas ‘exd, and the entertainments will conclude with “To Paris dod Back for Five Pounds.” | Beyrow's Tatarne—The splendid plece called ‘Paris and London,” which had such a long and very successful run, will bé presented this evening, with a cast which | embraces all the sterling talent of this favorite and pros- | perous establishment—Mr, Placide in his inimitable per. | fonation of the French barber, and Burton. as Trot, the | coachman. Besides, the names of Dyott, Mias Weston, | And other eminent artiste will sustain prominent charac’ ters. Mrs. Holman will sing a favorite ballad, and the favorite farce of “Poor Pillicoddy”’ concludes all. | Nanonal Tikatre.—The moral drama entitled “Crime | shortest and Repentance’ will commence the amusements of this evening, bir. W. G. Jones as Michael Deforest will sing a favorite ballad and Miss Partington will appear in a popular dance. The Scottish drama en- titled ‘Kenneth, or the Weird Woman of the Glen,” will be the concluding feature. Nearly all the members of | Purdy’s dramatie company appear in this piece. Wattack’s Taratre.—Two very attractive pieces are | announced first is, ‘' Faint Heart never Won Fair Lady,” Lester and | Mise Laura Keene being the stars of the piece. An ex- | cellent selection of new and popular music will be played | by the orchestra, Mies Malvina will appear in a mili- (aire, and Sheridan’s fine comedy of the ‘“ Rivals,” with Blake, Lester, Brougham, and Miss Laura Keene, in the leading characters, will terminate the amusements. American MuskuM.—The drama entitled ‘Six Degrees of Crime,” with C. W. Clarke personating Julio Dor. melly, and Misa Mestayer the part of Louise, is announced | for to-night, together with the farce of the “‘ Phenome- | non.”’ ‘Iwo excellent pieces are alo provided for this | afternoon. | | | | Sr CuaRrtes Taearre.—M. J. R. Scott is still drawing crowded houses to this theatre—-le is announced to ap- pear in his great character of Ugolino this evening, in the tragedy of that name. The new drama, styled ‘Eveleen Wilson,” and the farce of the Ticket,” will also be given. Cmcvs.—Sands & Company present a varied and attrac- tive bill of entertainment for this evening, comprising, independent of the regular equestrian amusements, seve ral novel features. Cunusty’s OreRa Hovse.—Christy’s Ethiopian Opera Company continue as attractive as ever. The new songs, entitled “‘ Etty Way’ and ‘Lilly Dale,” are to be repeat: ed, together with other attractive peformances. Woon’s Miverrris.—Manager Wood has provided an- other new Cs 8 for his patrons this evening, entitled “Woman's Rights.”’ His entertainments give decided satisfaction to crowded houses every night. All the eccentrie performers are to apptar. Dr. Vatentine.—This highly popular eccentric lecturer « well patronized at Hope Chapel. He will continue his lectures during the ensuing week. The receipts of Wei. nesday, Thursday, Friday and Saturday, will be for the benefit of the New York Volunteers, Prov. Hriter.—This celebrated necromancer is to commence another series of his soirées of diablerie, at 559 Broadway, to morrow evening. The programme ‘is rich and varied. Lottery | not accomplishing the shortest passage | thus laments that he did not follow the direetions of | windward, to the northward of St. Roque, as I | winds: and may we live to hear that he has made, (as ho will certainly do) the voyage to California in less than ninety days. hours. But her competitor was fully her equal in 5] | and the Gilpin could ill afford to throw ‘away that 206 | Recordon. Miss | | throughout;”’ in 11° she took the northeast trades; on 30 in them, Tt is strongly urged upen all vessels not to ctick here—to go direetly through, and, if meeessary, to beat to windward after crossing the line. It is to be regretted that Capt. Nickels threw away these three days; and his et made te Cali- fornia, may be imputed to their loss. Yn his journal be Lieut. Maury: ‘I now regret that after making so fine a ua to 62 N., that I did not dagh on and work my way to we @x- perienced’ little or no westwardly set, since passing the equator, whilst three or four days have been Ket in fork. ing to the eastward, between the latitudes of 6 and 3 north, against a strong weatwardly set.”” This is a candid admission in Capt. Nickels. Upon his next pacrage inthe same ship, may he have the same } y' ‘The John Gilpin took the “longest road round,” hop- ing te verify e old sa: , of finding it *‘the nearest road home.’’ She is decidedly swift of heel, for her jour- nal shows the unusual run of 315 miles in twenty-four miles which she lost b n the parallels going #0 far to the eastward yt) and 30 N. It is true she had the advantage of being well to windward, for when she entered the region of light winds, she steered direetly aeross, upon an easy bowline, and in twenty-five days wo find her south of the equator, with a good breeze, and prospects as bright as the skies above her, of making a capital passage to California. it has been shown that both ships lost north of the line: one being a little too cautious, the other a little too bold. Both crossed upon the same day, (the 234 of De- cember) and from here they had a tolerably fair start for the yet far off land of gold. On the 24th they were almost ‘neck and neck,’’ being only a little upwards of thirty miles apart. A person at the mast head of either ship, might have discerned the upper sails of the other. ‘The trade winds hung well to the southward; the Gilpin was enabled to lay her course; and she went on her way rejoicing, while the Fish bad to ‘‘go about” to ayoid the land. e Gilpin kept the lead until she entered the re- gions where old Zvlus loves to hold his court. Both ships attempted to go through the Straits of LeMaire; the Gilpin failed—the Fish succeeded, and thereby recovered ‘he distance she had lest upon the coast of Brazil. Here again Capt. Nickels, fearless of the stormy region and , dangerous lee shores, made another bold ie a is efforts. his passage, and this time fortune smiled uy With a N.E. wind, which does not often blow in those latitudes, he leayed ahead, is ; and when he ‘crossed the equator, which he did in twenty- me days from Cape Horn, he was two days ahead of the in. ‘The Flying Fish eroseed upon the meridigh of 112 de- | grees west. In the meantime the Gilpin took the recom- mended track. She secured her westing, and with it her pastage; when she no dread of “lee bore up north she had shores,’’ and we find that she the run to the line in twenty-five days, which she crossed upon the meridian of 116 west, two deys after the Flying Fish. Here fortune again favored the Glipin, and deserted the Fish. The doldrums about the equator seemed to be fatal to the latter, for while she lay the Gilpin passed ber, and again got the lead, whioh she continued to hold, and although the Fish, like the post boy, ‘came lumbering at her heels,’’ the Gilpin ke) ahead: and en- tered the Golden Gate in fifteen ara from the line—the ssage except one upon record. The Flying Fish had also a fine run up of eighteen days. Between. 6 and 7 degrees north, for two days, she is 1 , “ealm the 3ist of January, 1863, one day before the Gilpin, she. anchored in the hatbor of San Francisso, after the unu- sually short voyage fromyNew York of ninety-two days and four hours. Thus terminatea the contest between these two noble ships. We haye compared their abstracts, and followed them upon their voyages, with interested feelings. On a comparison, it is dificult to determine which vessel is en- titled to the palm of victory, so nearly are they matched. Fach experienced the vicissitudes of wind and weather to which they were liable upon such a lengthened voyage, and we may well put them down as being crack ships, well handled and ably commanded. Governor Lowe's Srzxca.—At the dinner of the Irish Social end Benevolent Society, hgld in Bal- timore on the 29th March, Governor Lowe honored the company by an eloquent address, which was en- thusiastically applauded, in which he passed a high eulogium upon the virtues and amiable qualities of the ‘‘Sons of Erin,” and animadverted severely upon the brutal policy of the English government towards the Sister Isle,to which might be attributed the slough of despond in which that unfortunate people were at the present time immersed. He concladed by calling upon his audience to remember that they were not Saxons, Celts or Anglo-Saxons, but that ey nation of Europe had contributed its blood to the formation of our t amalgamated race—the American people—and that we hold ourselves subor- dinate to no European nation, acknowledge no time - honored exclusiveness of anc , and measure our present duties and our future destiny b | whieh are to be found inany British or oler foreign | standard of excellence. | Police Intelligence, Samuel J Proper Committed to Prison for Trial—In the | matter pending before Justico Stuart against Samuel J. | Proper and John M. Martin, charged with obtaining $400 | and upwards from Benjamin F. Carmichael, of Rahway, | New Jersey, by false and fraudulent representa- Baxvarn's Panorama o¥ mH Hory Lavp.—This splen- did panorema is drawing crowded houses every night at the Georama, Broadway. Ownns’ ALriNe RAMBLES, AND) ASCENT OF MONT BLANv. ‘This novel and beautiful entertainment will be given to- morrow evening by Mr John Owens, who is well known to the cities of New York, beautifully p inted scenery. Mrs. Catharine N, Sinclair made her first appearance before a crowded audienee at the Varieties theatre, New | Orleans, on the 2#d ult. ‘The St. Charles theatre, New Orleans, closed for the | season on the 25th ult., with the benefit of Mr. Lynne. ‘The Bateman children made their first appearance in Mobile on the 22d ult., and closed their engagement on the 28th ult. ‘The Ronsset family, accompanied by John Sefton, were to perform in Charleston last week. Miss Kimberly was greeted with an overflowing house at her benefit in Pittsburg on the Ist inst. Mile. Melisso, one of the French dancers, had a fine audience for her benefit at the Howard Atheneum, Bos- ton, on the Ist inst. Mr. W: R. Goodall was married in Boston on the 28th ultimo, The Mason Will Case, Refore the Surrogate. Apnat, 2.—Application was made by Mr. Ring, on behalf of Mr. James Mason, in pursuance of the recent verdict in the Circuit Court, for letters of administration on the estate of John Mason, deceased. The application was op- posed, and the matter was not disposed of by the Surro- gate, ax it appears the case is to be taken to the Jourt of Appeals, on a motion for a new trial. Thus this long liti- ated case is destined to provide more heavy fees for favyers, and adry "thrice told tale” for judges and jurymen. Naval Intelligence. ‘The U.S, «ieamer Saranac arrived at Havana 28th ult., from Fensacolt, 2nd remained there 20th. Tt will be illustrated by | m tions reapectin, atetflious acatt for $800 on « pretended firm in New Orleaans, the magistrate, on Saturday after- | noon, decided to hold’ Proper to bail in the sum of $1,500 | toanswer the charge at the Court of Sessions, in default of which he was committed to prison. For Martin, the in- dividual concerned with Proper, the strate wet the ~ | magistrate has, in addition to the above case, committed | Proper on an indictment found him some time | since, on a similar charge, his bail having surrendered him. Brutal Treatment to a Boy.—Yesterday officer Smith, of the Nineteenth ward, arrested a journeyman tor named Thomas O'Brien, ona charge of perpetrating am aggravated assaul person of boy only ten | years of a Peter Farney, under the following On Saturday afternoon it seems the boy | circumstance ° in | went to the workshop where O’Brien is employed, ‘Twenty-fifth street, near Tenth avenue, and there enticed. y a dog belonging to O'Brien. The boy had not got | far off before O'Brien pursued him and brought him back | to the bd He then tied a rope around the io ps body, * and the other end of the rope to the crank of » grind- stone. O'Brien then compelled two boys, uamed Berne, | Katen and Michael M id, to tarm the c: | thus tightened the 4 around the boy’s body, same time drawing him olose to the crank, and there held him for some minutes. When released the poor boy fell almost lifeless. Ho was picked up and taken to the residence of his parents, No. 243 Tenth avenue; a Poya cian was procured, who gave his opinion that the child would not recover the severe internal yr ed received. The accused was taken before Justice Stuart, and com. mitted to prison to await the result of the injuries, The two boys were committed as witnesses. Furious Driving. —A back driver named Wm, Fitepat._ rick, was arrested on Saturday evening,"on a charge of furiously driving his horses along the Third avenue, and when near Twenty-ninth strect running over an elderly woman, injuring her very severely, if not fatally. ‘The police of the Kighteenth ward arrested be ick and conveyed iim before Justice Stuart, who held him to an- bik, @ charge. The aged woman wax conveyed toher » residence.