CHAPTER III

THE FIGHT FOR BROADWAY

1852 TO 1884

BROADWAY, the principal residential and business street of the city, was, of all the streets and avenues, the one most sought after by the crafty franchise-seekers. On July 16, 1852, Jacob Sharp, William Menzies, D. R. Martin, Freeman Campbell and twenty-six others petitioned the common council for permission to construct a surface railroad on Broadway from South ferry to Fifty-ninth street.1 The property-owners along Broadway, fearing a railroad would ruin them, protested vigorously.2 After a few months the agitation subsided, and the board of aldermen, on November 19, 1852, and the board of assistant aldermen, on December 6 of the same year, passed the ordinance 3 notwithstanding the fact that no less than half a dozen other applications, each of which proposed terms more favorable to the interest of the city, had been submitted.*

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Alexander T. Stewart and others agreed not to charge a greater fare than three cents to each passenger and in addition to pay a license fee for each car which was not to exceed one thousand dollars per year. Thomas A. Davies and others were willing to give the city one cent for every

Proceedings of the Board of Aldermen, vol. xlvii, p. 117.

'Ibid., vol. xlviii, pp. 13, 62-69, 108-109, 124-125, 156, 187, 196, 269, 532. 3 Valentine, David T., Ferry Leases and Railroad Grants, pp. 243-248.

♦ Proceedings of the Board of Aldermen, vol. xlviii, pp. 530-537.

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five-cent fare collected. In another petition Davies, D. H. Haight, Stephen Storms and others offered to carry passengers for three cents each, or to pay the city ten thousand dollars per year for ten years with the privilege of charging each passenger a five-cent fare. William McMurray and Henry Hilton solicited the grant at a five-cent fare with a bonus to the city of one hundred thousand dollars a year. John La Farge and his associates offered a threecent fare. Watts Sherman and others agreed to pay the city one cent for every five-cent fare. A wave of indignation swept over the city when these facts became known.1

Mayor Kingsland in vetoing the resolution, December 18, 1852, reviewed the offers of the competing petitioners and pointed out that any one of them would result in a far greater financial return to the city than the grant which had been authorized by the council. He also plainly stated that if the community demanded the construction of a railroad through any one of the thoroughfares of the city, it was the duty of the councilmen to grant that accommodation, but added that it was equally their duty not to lose sight of the rights and interests of the city, by refusing to grant it to those who would construct it on the most favorable terms and who would be willing to pay the largest amount for the privilege.2

In spite of public opposition and the praiseworthy veto of the mayor, the councilmen threatened to repass the resolution.3 To prevent this action, Thomas A. Davies and Courtlandt Palmer brought suit in the Superior Court against the mayor, aldermen, and commonalty. As a re

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1 1 New York Evening Post, July 17, 1852; November 20, 23, 1852. 'Proceedings of the Board of Aldermen, vol. xlviii, p 533. 'New York Evening Post, December 30, 1852; New York Tribune, December 30, 1852.

4 Davies v. The Mayor &c. of New York City, New York Superior Court, Duer's Cases, vol. viii, p. 464.

sult a restraining injunction was issued by Judge William W. Campbell,1 a copy of which was duly served on each member of the common council. The councilmen, however, did not heed this injunction, for two days later, on December 29, 1852, the ordinance was repassed by a vote of fifteen to three, Alderman Alonzo A. Alvord not voting.2 As soon as this action had been taken, Alderman Oscar W. Sturtevant presented a preamble and resolutions stating that Judge Campbell, "without color of law or justification, assumed the prerogative of directing and controlling the municipal legislation of this city. . . . [If] such. . . unwarrantable interference be submitted to or tolerated without just rebuke. . . the whole municipal legislation of this city [will] be subjected to the caprice or interested views of any judge..

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The public was astounded at this action and steps were at once taken to punish the aldermen for contempt.* The case was bitterly contested, the able array of counsel for the aldermen vainly advancing every argument in favor of their clients. Alderman Sturtevant, as the author of the resolution, was sentenced to a term of fifteen days in the city prison and fined two hundred and fifty dollars, to be paid to the city treasury, together with court costs. The other aldermen with the exception of Alderman Wesley Smith, who expressed regret and apologized to the court, were likewise fined. This decision of the Superior Court was sustained by the Court of Appeals.

1 Davies v. Mayor &c., op. cit., vol. viii, pp. 468-469.

"Proceedings of the Board of Aldermen, vol. xlviii, p. 641.

3 Ibid., p. 643; Davies v. The Mayor &c. of New York City, New York Superior Court, Duer's Cases, vol. viii, pp. 469-470.

The People v. Compton et al., New York Superior Court, Duer's Reports, vol. viii, pp. 545-573.

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This first Broadway grant was afterward declared invalid by the Court of Appeals on the ground that construction had not been commenced in time to bring it under the general confirmatory act of 1854. Thus the work of the "forty thieves," as the councilmen were known in those early days, was without result and the attempt to construct a surface railroad on Broadway had failed for the time being.2

1 Milhau v. Sharp, 27 N. Y., 611.

"It is interesting to note the conditions laid down in this abortive grant to Jacob Sharp and his associates in 1852. In the first place, the tracks were to be laid under the direction of the street commissioner, in or near the middle of the streets, the outer rails to be not more than twelve feet six inches apart and to be laid flush with the pavement; that the inner portion of the rails should be equal in height with the outer, and that the groove should not be more than one inch wide unless some other type of rail was approved by the street commissioner or the city council; the space between the rails and for one foot on each side was to be kept in repair by the grantees. New cars were to be used and were to be equipped with all modern improvements; passengers were not to be permitted to stand in the aisle or on the platform, and any car having all its seats occupied was not to take on other passengers. Cars with horses attached were not to exceed forty-five feet in length, and in making stops they were not to obstruct crossings; only one stop in each block was permitted, unless the blocks should be of extraordinary length" or the weather should be rainy. An attendant was to be present at every appointed stopping place in the crowded streets and his duty was to assist passengers in and out of the cars. The grantees were to keep in readiness a number of sleighs adequate to the public accommodation" when the travel of the cars might be obstructed by snow. Broadway, south of Fourteenth street, was to be swept and cleaned every morning, except Sundays, and the sweepings carried away before eight o'clock during the summer season, and before nine o'clock in the winter. North of Fourteenth street the sweeping was to be done as often as twice a week when weather conditions permitted. The fare was to be five cents from one point to another on the route and on such combined systems of routes as might thereafter be adopted by means of cars and transient omnibuses. As compensation the city was to receive for the first ten years the car license fee allowed by law at the date when the franchise was granted. At the expiration of this period a further license

The opposition to a Broadway surface railroad below Union Square continued to be so persistent and powerful that the franchise-grabbers resolved to make application for a railroad paralleling it. Accordingly, Assemblyman Dixon on March 19, 1857, introduced a bill at Albany authorizing John A. Kennedy and others to lay a road on Seventh avenue, from Fifty-ninth street to Broadway, thence down Broadway to University Place; down University Place, Green and Canal streets to West Broadway, and thence through College Place to Park Place.1 Several petitions were filed in opposition to the measure 2 and it failed to pass. When the council learned of the introduction of this bill they virtuously resolved that public emergency did not necessitate the construction of such a road, that the citizens of New York city were wholly opposed to it, and that its legislative authorization would be unwise."

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By this time it was clearly evident that the mass of the people as well as the property-owners were determined to keep Broadway clear. Broadway was the "Fifth Avenue " of the mid-nineteenth century; it was the notable route for all civic and military processions.*

The second attempt to steal Broadway was made in 1859. On October 20 of that year the New York and Yonkers Railroad Company, which had been organized under the

fee could be prescribed by the common council with permission of the legislature. Should the grantees refuse to consent to the increased payment, the road with all its equipment and appurtenances was to be surrendered to the city at a fair and just evaluation. Valentine, David T., Ferry Leases and Railroad Grants, pp. 243-247.

1 New York State Assembly Journal, 1857, 80th Session, p. 783.

1 Ibid., pp. 1070, 1157; Senate Journal, pp. 767, 801.

* Proceedings of the Board of Aldermen, vol. lxvi, pp. 25-26.

*New York State Assembly Journal, 1857; 80th Session, pp. 1070, 1157; Senate Journal, pp. 767, 801.