Pelham's Involvement in the "Battle" of Harlem Bridge During the Late 1830s and Beyond
Coles also was required by State statute to construct a broad roadway (four rods wide) from the Harlem Bridge through Westchester County to connect with the Old Boston Post Road at Eastchester and Pelham. The route selected for that roadway led from the bridge (that in modern times became known as the "Third Avenue Bridge") to about East 163rd Street in today's Bronx, then eastward down a hill across Mill Brook (today's Brook Avenue in the Bronx), and then northward through Boston Avenue, which it followed to West Farms, crossing the Bronx River at the so-called "Bleach" below Bronxdale and continuing through Eastchester and Pelham (on today's Colonial Avenue) until it joined at New Rochelle the ancient Boston Road.
Coles built the bridge and the roadway as authorized by statute and began collecting tolls. Coles was authorized to use eminent domain to create the roadway, but apparently had some difficulties. Some landowners were not paid for their lands taken for the roadway for quite some time. New York City, in turn, built a new roadway leading to the bridge.
"The First Harlem Bridge, N. Y., 1860. From Valentine's Manual."
Source: Jenkins, Stephen, The Story of the Bronx From the Purchase
(New York and London: G. P. Putnam's Sons The Knickerbocker Press, 1912).
NOTE: Click on Image to Enlarge.
The new roadways contributed to the growth of then-lower Westchester County (since annexed and now part of the Bronx). Indeed, it made it more convenient for many to travel to Pelham, Eastchester, and New Rochelle, leading to additional development in those portions of Westchester County as well.
The toll bridge was wildly successful because the convenient route to lower Westchester became so heavily traveled. Indeed, in 1808, Coles obtained authorization from New York State and incorporated the venture as "The Harlem Bridge Company." He sold shares in the company to a small group of investors who thereafter received dividend payments.
During the early to mid-19th century, Harlem, Morrisania, and West Farms grew at a surprising pace. Traffic over the Harlem Bridge grew concomitantly. The Harlem Bridge Company and its investors prospered. At the same time, local citizens began to chafe over the tolls. During the late 1830s, a group of Westchester residents decided to do something about it.
The men commenced a State court proceeding by "writ of quo warranto" against the Harlem Bridge Company and its shareholders, among others. The nature of the proceeding was quite significant. A writ of quo warranto is a notice of demand for a court to hold a hearing within a very short time to require a respondent to present proof of the respondent's authority to hold an office or maintain a franchise. Such a writ is pursued on behalf of the people and is different than a petition or a motion to show cause, for example, because the burden of proof rests on the respondent to show the authority to hold the office or maintain the franchise. The burden of proof does not rest on those who commence the proceeding to show that the respondent has no authority to hold the office or maintain the franchise.
The Westchester County men who were behind the writ of quo warranto were known as "relators." "Relator" is another legal term that references a private person at whose relation (i.e., on whose behalf) an application for a quo warranto is filed. Although the "relator" is the one with a beneficial interest in the dispute, the proceeding is brought by the relator on behalf of the people of the State. The State, in turn, had the right to participate in the matter if it wished. In this particular instance, the Attorney General of the State of New York State pursued the matter on behalf of the relators.
Broadly speaking, without regard to the legal niceties of the nature of the proceeding, New York State supported a proceeding on behalf of a group of Westchester County men against the Harlem Bridge Company questioning the validity of that company's franchise to operate the toll bridge and, thus, its right to exact tolls from those who crossed the bridge.
The case was styled The People of the State of New York, ex. rel. Thomas E. Taylor, et als. versus Samuel M. Thompson, Samuel Fluellen, Wm. F. Coles and Isaac U. Coles, assigns of John B. Coles, and stockholders and proprietors of the Harlem Bridge and its Company. The matter soon became known far and wide, however, as simply "The Harlem Bridge Case."
Towns throughout lower Westchester County, including the Town of Pelham, had an abiding interest in the outcome of the matter. If the franchise of The Harlem Bridge Company could be nullified, the bridge would become a free bridge not only reducing the cost of one mode of travel from lower Westchester County to New York City, but also likely increasing the number of travelers using the route and even increasing the pace of the development of the region.
Significantly, although the State of New York and the New York Attorney General supported the matter on behalf of the relators, the relators were required to fund the proceeding. This meant that the relators had to raise funds of their own or via subscriptions from others to pay the costs of the matter.
On May 2, 1838, a trial of the matter began before Judge Edwards of the Supreme Court of the State of New York. We are lucky to have an extensive newspaper account of the first day of the trial during which the issues before the Court were laid out in detail and counsel for the Harlem Bridge Company and its shareholders presented proof of the validity of the franchise to operate the bridge and charge tolls on it for sixty years.
There were six issues before the Court, as noted in the newspaper report:
"1st issue. Was John B. Coles the assignee of Morris?
2d. Whether John B. Coles did build the bridge at a certain time, according to the provisions of the act, and in a certain way therein specified.
3d. Whether he kept the bridge in good repair, according to the requirements in the act made and provided.
4th. Whether the defendants are stockholders and proprietors in that bridge or not.
5th. Whether a road was constructed for 8 miles from the bridge to East Chester and cleared properly for the convenience of travellers [sic], according to an act passed for that purpose, by which John B. Coles was allowed to charge 50 per cent additional toll for 60 years, on compliance with the provisions of the same.
6. Did John B. Coles give a bond to the people of the state of New York, to the amount of ten thousand dollars for the due and proper fulfillment of the conditions of the act of 1795."
The two issues to which a great deal of attention was devoted on the first day of trial involved: (1) whether John B. Coles built the 8-mile long road from the Harlem Bridge to Eastchester as was required and whether the road was "cleared properly for the convenience of travellers [sic]" as required; (2) whether Coles posted a $10,000 bond with the State of New York to secure his obligations to keep the bridge and, for a time, the road in a state of good repair. The State of New York could find no evidence of having received such a bond and the Harlem Bridge Company could present no evidence that Coles provided the bond before his death in 1827. Instead, the Harlem Bridge Company argued that a later statute enacted by the State of New York made reference to the bond and, thus, New York could not deny receiving due to its admission in the later statute.
"HARLEM BRIDGE COMPANY. -- A verdict was rendered in the Circuit Court yesterday, in relation to the Harlem bridge Company, the effect of which, according to the opinion of several lawyers who were in Court when it was delivered, will be to place the bridge at the disposal of the legislature. It is understood, however, that the Company will appeal from this verdict, and carry the case to the Supreme Court."
It is not clear from the extant record revealed so far by research but either the written opinion was not released for months thereafter or there were some additional proceedings in the Supreme Court not yet clear from the record. In any event, in June, 1839, New York City newspapers reported that the opinion had "recently" been released and that "the proprietors no longer possess the right of exacting tolls from the public."
On June 8 and June 9, 1839, according to one news report, rumors surged through New York City that as a consequence of the decision,
a party of citizens of Harlem had taken possession of the gates and toll-houses of the Harlem Bridge, and that throughout the day the bridge had been passed by carriages and foot passengers free of toll."
By mid-June, 1839, elation turned to frustration. By that day, attorneys for The Harlem Bridge Company had appealed to New York's "Court for the Correction of Errors" to begin the process of appealing the decision of the lower court. The relators, it appears, promptly sought the financial assistance of surrounding towns, including Pelham, to help fund the response to the appeal.
On Thursday, June 20, 1839, a large public meeting was held at a tavern in Eastchester. Among the many Westchester residents who attended, including many men or prominence and many town officials, Stephen Sneden Pell, a former Pelham Town Supervisor and notable town resident, and James Townsend, a respected town resident who only two years later would likewise serve as Supervisor of the Town of Pelham.
Attendees discussed The Harlem Bridge Case at length, then appointed a committee of five attendees including Stephen Sneden Pell to retire briefly and draft "resolutions expressive of the sense of the meeting." The Committee of five returned to the meeting after a short time and proposed the following resolutions which were adopted unanimously:
"Whereas, This meeting has been officially informed, that the Haerlem Bridge Company have appealed from the decision of the Supreme Court to the Court of Errors, and that more expenses will be incurred by the relators in consequence thereof; therefore,
Resolved, That a committee of fifteen be appointed for the purpose of taking up subscriptions to aid in the defence of the suit now pending against the Haerlem Bridge Company, or any other that may grow out of it, and also to aid in the repair of the road called Cole's Road, adjacent to the Bridge, should the same be adjudged as belonging to the people.
Resolved, That the money collected be paid into the hands of the relators, to be by them disbursed according to the terms of the foregoing resolution.
Resolved, That it shall be the duty of the Relators to defend any individual who shall or may have contributed towards the expense of this litigation, against any suit which the Haerlem Bridge Company may institute for the recovery of tolls; or, if necessary, to proceed against the said Company, or their agents, by indictment or otherwise, for obstructing the highway or extorting tolls.
Resolved, That the thanks of this meeting, and of the public, are justly due to the Relators in the above cause, for their firmness and attention to their trust, which has been conducted by them, through circumstances of the most trying and vexatious character, to a favorable issue.
Resolved, That we have undiminished confidence in the justice of our cause, and the wisdom of our judges.
Resolved, That this meeting hereby confirms the powers of the Relators previously granted them, and also authorizes them to confer with the Corporation of New York, and to make any arrangements in relation to the Haerlem Bridge, which they may think necessary for the interest of the inhabitants of this County, or take any other measures needful in the premises."
Pursuant to the resolutions, the meeting then appointed the requisite committee of fifteen to collect subscription fees to fund defense of the appeal by The Harlem Bridge Company. Among the fifteen selected was James Townsend of Pelham.
With such support, the relators were able to undertake defense of the appeal by the Harlem Bridge Company. That defense, however, did not go so well.
On Saturday, December 26, 1840, the decision of the Court of Errors in The Harlem Bridge Case was released. By a vote of 11 to 10, the members of the Court reversed the lower court decision and, in effect, ordered that the matter begin anew. At least as of that time, the franchise of The Harlem Bridge Company to operate the bridge and charge its tolls remained valid.
Research has not yet revealed any further proceedings in The Harlem Bridge Case. Indeed, the matter may have ended there, because it is clear that The Harlem Bridge Company continued charging tolls for years thereafter. Moreover, as 1858 approached (the end of the sixty-year period to collect tolls), the company engaged in "strenuous efforts" to renew its franchise. Finally, New York State stepped in and blocked such efforts, mandating that the bridge would become free as of April 1, 1858 and empowering the Counties of New York and Westchester "to provide for its maintenance or to build a new bridge."
According to Stephen Jenkins in his Story of The Bronx:
"In June, 1860, W. H. McAlpine was appointed engineer, and plans were devised for building a new bridge with an iron draw and stone piers at a cost of three hundred thousand dollars, while better facilities were planned for the convenience of passing vessels.
This second Third Avenue, or Harlem Bridge, as it was commonly called, was built of cast iron. The piers, instead of being stone as originally planned, were iron cylinders which were sunk to their proper places and filled with ballast. The whole structure, especially the piers, was considered at that time a most remarkable piece of engineering, and as a great and ingenious advance in bridge-building. The wooden draw of the old Coles bridge was towed to City Island, where it did duty as the draw of the old wooden bridge there until its demolition in 1902."
Pelham may have supported efforts to make The Harlem River Bridge free in the late 1830s and 1840s, but it was not to be. The bridge remained a toll bridge for sixty years, until April 1, 1858.
* * * * *
Below is the text of a number of items related to today's Historic Pelham article. Each is followed by a citation and link to its source.
"In 1790, Lewis Morris obtained from the State Legislature a franchise to build a dam bridge from Harlem to Morrisania. This franchise he assigned to John B. Coles, who, in 1795, received from the Legislature an extension of the privileges already granted, which allowed him to build a stone dam across the river as a foundation for his bridge, which should hold back the waters of the Harlem and furnish power for mills to be established along its banks. The navigation of the stream was not to be interrupted, however, and a suitable opening, attended by a lock-keeper, was to be left for the passage of vessels. The bridge was to be constructed within four years, and Coles and his assigns were to collect the tolls for sixty years, provided they kept the bridge in repair; at the expiration of that period the bridge was to vest in the State.
By the act of 1790, Lewis Morris was authorized to appoint three commissioners to act as a highway commission to lay out a road from the proposed bridge through Morrisania, West Farms, and Eastchester, and at the last named place to connect with the main road to Boston. Morris was to pay the commissioners, but the cost of the condemnation proceedings and of the road was to be paid by the towns through which it was to pass. The highway commission of the city of New York was also authorized to lay out a road on Manhattan Island to the Harlem end of the bridge. The road through Westchester County was to be four rods wide, a width which, before the Revolution, would have given it the name of the 'King's Highway,' that being the legal width of a post-road in England or the colonies. The route selected by the commission led from the bridge via the present Third Avenue to about East 163d Street, thence eastwardly down a hill across Mill Brook (Brook Avenue), and thence northerly through Boston Avenue, which it followed to West Farms, crossing the Bronx River at the 'Bleach' below Bronxdale; and continuing through Eastchester and Pelham till it joined at New Rochelle the ancient Boston Road, which came from Kingsbridge via Williamsbridge.
Difficulties arose with the property owners whose land was taken for the road, as they were not promptly paid; notwithstanding which, the Legislature of 1797 declared the road a public highway and directed Coles to finish it at his own expense, at the same time authorizing him, for a period of thirty years, to increase the bridge tolls, not to exceed fifty per cent. of those already prescribed by previous statutes. This was to reimburse him for his additional outlay in completing the road; but he was to keep it in repair during that time. In the following year, 1798, he was relieved of this last condition and his increase of bridge tolls cut down to a twenty-five per cent. advance. This was due to the fact that the State had partially paid for the construction of the road under the act of 1797, which empowered the State to aid in the improvement of public roads; the money was obtained by a public lottery. It was just about a century later that the wheelmen, the good roads associations, and drivers generally succeeded in getting the State once more to give aid to the counties and towns in constructing and grading the public highways; a law whose benefit is seen in the fine highways that are gradually but steadily appearing in all sections of the State under the guidance of competent engineers and roadbuilders, instead of that of the rural road-master. This improvement in road-building has affected the Coles road; for in the fall of 1911 work was begun to widen the more than century-old road and make it a State road. Work is progressing from Pelham Parkway northward as this is written.
The rates of toll as authorized by the Legislature for the use of the bridge were as follows:
Every four-wheeled pleasure carriage and horses..............37 1/2 cents
" two-wheeled pleasure carriage and horse.......................19 "
" pleasure sleigh and horses..............................................12 1/2 "
" common wagon and horses.............................................12 1/2 "
" common sled....................................................................12 1/2 "
Ox cart and oxen.................................................................12 1/2 "
Every one-horse cart and horse.......................................... 9 "
" man and horse................................................................. 9 "
" ox, cow, or steer............................................................... 1 cent
" dozen hogs, sheep, or calves, and so in
proportion for a greater or less number..................... 6 cents
For every foot passenger..................................................... 3 cents
State and United States troops, with their artillery, carriages, and stores were to have free passage.
The new road through Westchester County, and that built on the island of Manhattan to meet it diverted travel from the King's and Farmers' bridges at Spuyten Duyvil, as the course to and from Eastchester for eastern travel was much shorter and more direct by the new bridge and road. The bridge was so well patronized and was so financially successful that we find the owners petitioning the Legislature in 1808 for incorporation as the Harlem Bridge Company, a petition that was granted. Before the expiration of the sixty years for which the franchise was given originally, Morissania and Harlem had grown apace, and the bridge was inadequate for the amount of traffic that passed over it, and the lock too small for the accommodation of passing vessels. Still, strenuous efforts were made by the company for the renewal of its charter as 1858 approached. The Legislature took the matter in hand, and after reciting the fact that the bridge would become free on April 1, 1858, empowered the counties of New York and Westchester to provide for its maintenance or to build a new bridge. In June, 1860, W. H. McAlpine was appointed engineer, and plans were devised for building a new bridge with an iron draw and stone piers at a cost of three hundred thousand dollars, while better facilities were planned for the convenience of passing vessels.
This second Third Avenue, or Harlem Bridge, as it was commonly called, was built of cast iron. The piers, instead of being stone as originally planned, were iron cylinders which were sunk to their proper places and filled with ballast. The whole structure, especially the piers, was considered at that time a most remarkable piece of engineering, and as a great and ingenious advance in bridge-building. The wooden draw of the old Coles bridge was towed to City Island, where it did duty as the draw of the old wooden bridge there until its demolition in 1902."
Source: Jenkins, Stephen, The Story of the Bronx From the Purchase Made by the Dutch from the Indians in 1639 to the Present Day, pp. 193-96 (New York and London: G. P. Putnam's Sons The Knickerbocker Press, 1912).
"In 1795 the State Legislature granted a franchise to John B. Coles to build a dam bridge across the Harlem River. This is known as the first Third Avenue, or Harlem, Bridge. Heretofore all persons going from Manhattan to the mainland, and vice versa, were obliged to travel in a round about way across Spuyten Duyvil Creek by ford or ferry or bridge. The bridge was to be constructed within four year, and the ownership was to be vested in Coles for sixty years, after which period it was to become the property of the State. A lock, attended by a lock-keeper, was to permit the passage of vessels.
The tolls which Cole was authorized to collect, provided he kept the bridge in repair, ranged from one cent for every ox, cow, or steer and three cents for every pedestrian to thirty-seven and a half cents for every four-wheeled pleasure carriage and horses that passed the bridge. At the expiration of the sixty years, the Harlem Bridge Company, which was incorporated in 1808, loathe to relinquish so rich a pudding, made efforts to procure an extension of its franchise; but the State Legislature turned it over to the counties of New York and Westchester, who converted it into a free thorofare.
For almost seventy years the Harlem Bridge did noble service across the Harlem River, when, owing to the increased traffic between Harlem and Morrisania, it was found necessary to replace it with an iron structure. This second Third Avenue, or Harlem, Bridge was in turn removed to make room for a more modern steel and iron bridge with a draw of 300 feet. The third Harlem Bridge was opened to the public on August 1st, 1898, at a cost to the City of $2,357,742.51."
Source: Cook, Harry T., The Borough of the Bronx 1639 - 1913 Its Marvelous Development and Historical Surroundings, pp. 48-49 (NY, NY: Published by the Author, 1913).
"Important Trial.
SUPREME COURT OF THE STATE OF NEW YORK, FOR THIS CIRCUIT. -- Before Judge Edwards. -- Wednesday, May 2.
The People of the State of New York, ex. rel. Thomas E. Taylor, et als. versus Samuel M. Thompson, Samuel Fluellen, Wm. F. Coles and Isaac U. Coles, assigns of John B. Coles, and stockholders and proprietors of the Harlem Bridge and its Company.
This is one of the most important cases that has come up for trial for some time past. It is neither more nor less than an endeavor, by a verdict of a jury, to annul and vitiate the charter, by virtue of which the proprietors of Harlem Bridge now take toll, and have done so for some years past, and to throw the bridge open for the free passage of the public.
The case came up in the nature and form of a quo warranto [NOTE: a quo warranto is a writ or legal action requiring a person to show by what warrant an office or franchise is held, claimed, or exercised], and as the affirmative of the issue lay with them, the case was opened by the defendants.
On the part of the people, the case was conducted by S. Beardsley, Attorney General for the State of New York, D. Lord, jun., George Wilson and Peter A. Jay. On the part of the defendants, the case was conducted by Benj. F. Butler, Attorney General for the United States, Griffin the elder, and George W. Strong.
Mr. Griffin stated, that by an act of the legislature of this state, passed in 1790, Lewis Morris was authorized to build a bridge across the Harlem river; he did not build it, but conveyed his right and title under the act to John B. Coles. An act was passed by the legislature in 1795, authorizing John B. Coles to build a bridge across the Harlem river; the bridge to be 24 feet wide, the width between the arches to be 25 feet, and a drawer or drawbridge to be made, the width of it to be 12 feet, so as to allow 'the free passage of vessels with fixed standing masts.'
An act was also passed allowing John B. Coles to construct a stone dam across the Harlem river, and to make a lock 8 feet wide, so as to allow the passage of vessels drawing 2 feet of water.
The questions, as raised and contested under several issues joined, were these: --
1st issue. Was John B. Coles the assignee of Morris?
2d. Whether John B. Coles did build the bridge at a certain time, according to the provisions of the act, and in a certain way therein specified.
3d. Whether he kept the bridge in good repair, according to the requirements in the act made and provided.
4th. Whether the defendants are stockholders and proprietors in that bridge or not.
5th. Whether a road was constructed for 8 miles from the bridge to East Chester and cleared properly for the convenience of travellers [sic], according to an act passed for that purpose, by which John B. Coles was allowed to charge 50 per cent additional toll for 60 years, on compliance with the provisions of the same.
6. Did John B. Coles give a bond to the people of the state of New York, to the amount of ten thousand dollars for the due and proper fulfillment of the conditions of the act of 1795.
The act of the Legislature of March 31, 1790, was then read, authorizing Morris to build the bridge and take toll for 60 years.
The deed of assignment of right, title, interest &c. &c. from Morris to Coles was read.
The act of March 24th, 1795, was read, authorizing Coles to build the bridge.
An act of 30th March, 1797, was introduced, containing admissions by the Legislature that Coles built the bridge according to the provisions of the act. This was also recited in the plea. This was laid down as being good evidence as the people of the state of New York were plaintiffs, and had recited this in the act of 1797.
Mr. Griffin then contended that the two first issues were disposed of. He contended that the counsel for the plaintiffs had joined the 4 first issues in one common traverse; they deny those facts altogether; and we hold ourselves excused if we prove any one of those four issues true, because they traverse them together not in the nature of a special traverse, but as a common traverse.
Mr. Griffin then came to the 5th issue, whether John B. Coles caused a road to be made and cleared properly for the convenience of travellers [sic].
It also appeared that by the act of 1790, the arches of the bridge were to be 30 feet wide; the act of 1795 narrowed the arches from 30 to 25 feet.
An act passed in 1797, allowed him to take 50 per cent. extra toll if he made a road to East Chester and kept it in repair, for all who wanted to see it.
An act passed in 1798, released him from keeping the road in repair.
The pleadings therefore aver that he had a right to exact 50 per cent if he merely constructed that road, yea or nay. The act of the Legislature directed at a certain time that the road should be opened through sundry lands, not then opened, although the owners might not have received the money for those lands.
The only material point, therefore, Mr. G. contended, on that head, was whether Coles made the road as roads were made in 1797, because upon the presumption that he had, he, his heirs, and assigns had taken 50 per cent additional toll, and meant to do so for 60 years from the year 1795.
On the question whether Coles did sell and convey divers rights to divers persons, and whether the defendants were stockholders or not, they called
Walter W. Townsend. He produced the transfer book of the Company -- identified J. B. Coles's hand writing; he also read certain transfers and assignments of several shares to three of the defendants from Coles himself. The transfer to the other defendant, Fluellon, was first made to Isaac Clauson by Coles, and from Dickenson, Remsen, and Delaplaine, Clauson's executors, to Fluellen. All these transfers purported to be of shares in the Harlem Bridge Company.
Mr. Lord moved to rule out this testimony, as irrelevant because the counsel did not follow it up by showing that this company did own the bridge or did construct it.
The Judge asked what was the constitution of the company. This was a good time to introduce that testimony if it was afterwards connected properly with the proprietorship of the bridge, otherwise it was of no use; it was at present imperfect as it did not prove the issue.
Mr. Griffin then went to the next issue, whether Coles, his heirs and assigns, had been for years in the peaceable and undisturbed possession of the bridge and its profits.
Mr. W. W. Townsend swore that they had ever since he could remember. Thomson, J. A. Coles, and W. F. Coles had received dividends from the tolls of the bridge for 25 years; Mr. Fluellen had do so for 18 years. J. B. Coles &c, had used and enjoyed all the liberties and franchise assigned by Morris. John B. Coles died January 2, 1827. Up to his death he participated in the tolls of the bridge. A toll house has been kept there, and a toll keeper appointed from day to day, and from year to year, ever since he could remember; these toll keepers were appointed by J. B. Coles and the proprietors, including the four defendants.
Mr. Griffin then went on to prove that John B. Coles gave the requisite security to the treasurer of the state, as the act of 1795 required, viz. 4000 pounds, to preserve the bridge in good repair for 60 years, after which it was to be thrown open to the public. To this end he offered to read from a certified copy of an act passed March 25th, 1808, in which the legislature aver that Coles gave the requisite sureties and entered into the bond.
Mr. Lord objected to reading the averment from the act; the act of 1808 was passed for thee purpose of incorporating the proprietors as a company; but they refused to accept the act. The bond itself ought to be produced; it was not supposed to be lost; John B. Coles and his assigns ought to show that they gave the bond, and not make the legislature do so. The act of 1808 varied the franchise considerably from the act of 1795. John B. Coles himself claimed to be a corporation; the defendants disclaim having anything to do with the act in their plea, therefore they can't invoke this act or any section of it to their assistance; they disclaimed the acceptance of its franchises, or as conferring corporate right on them.
Mr. Jay contended that Coles was bound to execute that bond; he averred that the bond never was executed -- or if it was, it has not been given up -- it is in existence; or if it be lost, it is competent for the defendants to show its loss. If the grantee refuse to accept a contract, shall the grantor be bound by any part of it? We deny that the bond was ever in existence; the defendants repudiate the act of the legislature incorporating them; yet they want to make use of the recitals in that charter to show that they have not broken a former act.
Griffin stated that he had searched in the State Treasurer's office, where such bonds are kept, for this bond, but could not find it. He would swear it if necessary.
Mr. Lord said they must show that the bond once existed; searching for nothing a man might find folly; he would admit that the learned gentlemen had searched all creation, but he would not admit that they ever expected to find the bond. He couldn't play fast and loose with the case so.
Mr. Butler said that by the particular provisions of the act of 1795, John B. Coles was to construct a bridge within 4 years and to keep it in repair for 60 years. He averred that by the act of 1797, there is a clear admission that the bond was given. The present issue was taken on that averment; but by that admission the people, the present plaintiffs are estopped from denying the execution of the bond; the execution of the bridge was admitted and the bond must have been given, for it was a mere incident. The execution of the bond was a condition precedent to the acquisition of any of the franchises conferred by the act. Therefore they had a receipt in full. The filing of this information took place 40 years after the act of 1795, and the defendants had thence till now enjoyed the uninterrupted franchises of the act, and it was rather late to call for the bond to be produced. The old rule had grown into a maxim, and was well settled in all well regulated courts of law.
'Omnia rite presumuntur.'
The law of 1795 requires that a bond should be given to the people of this state; we produce the admissions of the plaintiffs themselves that we executed and delivered this bond to them, therefore it is not necessary for us to begin and prove that we made the bond. They say that the act of 1808 varied the character of the original franchise possessed by the proprietors of the bridge; that would have been the effect of it; but we did not accept it. It is true we cannot make use of that act to enlarge or improve our franchise. Neither do we wish to use this law as an estoppel, but merely to show that they admit we made the bond; and we contend that this extrinsic collateral admission is competent evidence. We consider that we here lay a foundation on which the jury must presume that this bond was executed.
Mr. Griffin -- Although it be not necessary to super-add this evidence, as cumulative evidence, yet we can go on and show that John B. Coles made the bond, and Nathaniel Coles was his surety. Our enemies had possession of that bond. If I gave my opponent a paper and he lost it, I am not bound to show he had it; it is sufficient to show his admissions that he had it. Now, if there ever was a case where the slightest secondary evidence was admissible, this case is that case. The law is settled that you may introduce the admission of a party to the existence of a paper, when you have introduced the preliminary proof which extricates you from the necessity of producing the technical proof. And if the careless admissions of a party in the street are admissible evidence, why not the admissions of the people of the State of New York. But no, says my learned opponent, you cannot give what the people said, because the people of the state of New York in their collective capacity have no tongues. Is it to be admitted in a land of law that the people of this state shall come in and try to turn us out of our rights, because we can't call the dead from their graves, and make the churchyards yawn -- the tomb to open its ponderous jaws. The bondsman is dead -- the subscribing witness is dead -- all are dead; and because they are dead, we'll expose you to a fine equal to the value of Harlem bridge -- a fine of $50,000. My adversary says he'll try this cause on its merits. I'm glad to meet him on the threshold, to fight with the stiletto and not the broadsword. Fortunately the sovereign people of this state are not like the sovereigns of Turkey, clothed with immunities; I knew of no privileges they have, that are not possessed by the humblest individual.
Mr. G. went on to cite authorities; The State versus Pepicott, proprietors, 10 Massachusetts Reports, 155, it was decided that a resolution of the legislature fixing certain landmarks to a patent right, precluded the people of the state from estoppel. He also quoted Coke on Littleton, 19 B. where it stated that the rehearsal or preamble of a statute is always to be taken for truth, because it cannot be supposed that a statute made with the authority of the whole realm, the commons, the lords spiritual and temporal, and the king, will state a falsehood. The act of 1808, already mentioned, was made by an authority equally high; and we give more than the preamble -- we give the section. He also referred to Dwarris on Statutes, p. 46 and 7 of Law Libel, where it is decided that a statute though repealed may be introduced as evidence to explain another statute or law to which it had any reference.
The judge said he understood that Mr. Lord had contended that the act of 1808 must be considered either as a grant or as an estoppel: it could not be a grant, because it was not accepted; it could not be considered an estoppel because there was no mutuality.
Mr. Griffin said that he offered it as cumulative evidence.
Mr. Lord said that all the gentleman had spoken relative to stilettos and broadswords, was a mere episode to the argument; and he was ready to fight him with these weapons or with guns and pistols; but it was intended to provoke a fight elsewhere than the weak place, to make it appear that the weak spot was in the bond; we should see when we got to the bridge whether the weak spot was in the bond or in the bridge. The act of 1808 was no evidence that the bond ever existed; they may also give evidence of a search for the bond if they once show that the bond existed. An unaccepted deed cannot be given as evidence of a recital in that deed. He did not intend to nick-name it, but it was an estoppel -- a recital in a statute cannot be evidence unless it is an estoppel, and this is not an estoppel, because it is not mutual. That unaccepted charter is not evidence of anything; it cannot be used for one purpose and not for another; the gentleman avoids the ground tat it is an estoppel, but he must go that, or if not it is a nullity.
The judge said that it was conceded it was not to be considered as an estoppel, and also that on proving the loss of the bond, secondary evidence could be introduced; the question was whether an instrument not binding as a contract, could be received as evidence of the admissions of one of the contracting parties. He considered that the fact of its intending to be delivered and not having been delivered, did not vary the concession in the act -- there was a broad unqualified admission by the Legislature that the bond had been made; the Legislature of the state recognized all the rights and franchises conferred by the set of 1795, as possessed by John B. Coles, and all precedent acts of his contingent on the enjoyment of those rights, must be considered as done. The law sometimes presumes things to a great extent; sometimes acts of parliament were presumed to have been passed, although they could not be proved. Under the view of the case as it now stood, he considered it as admissible evidence.
Mr. Lord excepted.
The last section of the act of March 25th, 1808, was then read, as follows: --
'That nothing in this act shall be considered to release John B. Coles and Nathaniel Coles, jun. from a certain bond entered into by them, pursuant to the act of 1795, or from every forfeiture incurred by the said Coles, and for which they are now liable, but all the rights of this state by reason of the said bond, or to the said forfeitures, are to remain in as full force as if this act had not passed.'
Mr. Griffin said that he had disposed of all the issues but two. One of these was, had Coles kept the bridge in repair since it was built. He called --
Townsend -- Knows the bridge since 1811 -- been kept in good repair -- ample provision has been made for it -- plank and timber plenty was provided.
Cross examined. -- Is a clerk -- been agent for payment of dividends to proprietors.
Lord. -- Name the dividends, sir, that you have paid, and to whom.
Judge -- Is it one of the questions at issue, whether his company has paid these dividends or not? Let's look to the record.
Lord -- The record says they had undisturbed enjoyment of franchise by the receipt of the dividends. Let them show the receipts.
Witness -- Part of the dividends I paid with my own hand -- and part I know from the book -- dividends were paid half-yearly to 12 to 15 stockholders -- there may have been occasional intermissions. There was a constitution of the Harlem Bridge Company, made by John B. Coles -- it was in writing. There were 400 shares.
Lord -- If these four defendants are to be punished to the extent of $50,000 how much is the whole bridge worth.
Objected to.
Ellen Mudge examined. -- Known Harley Bridge since 1798 -- resided there -- her father was toll gatherer -- succeeded Willis the 1st toll-gatherer -- my father was toll-gatherer 5 or 6 years -- his name was Weeks -- my husband succeeded my father -- and remained toll-gatherer till 1825 -- John B. Coles appointed my husband and my father -- bridge was kept all that time in good repair -- knows this from observation at all times.
Peter Hanneberg examined -- Was toll-gatherer at Harlem bridge -- succeeded Mrs. Mudge -- remained 6 months -- put there by the defendants -- went over it every day to see boards were not displaced large enough to admit a horses foot.
Peter Randall examined -- Was toll-gatherer -- appointed by defendants -- remained there till June 1828 -- had plenty of planks, &c. to keep it in repair -- furnished by Coles, Thomson and their associates -- am 46 years old -- known the bridge from a boy -- it always carried me over safe.
Lord -- Do you know of vessels being stopped by the drawer there?
Objected to.
Griffin -- Ask if the drawer was 12 feet wide -- they might have had Noah's ark down there -- not our fault if Noah's ark couldn't get through.
Witness -- Don't know the width of the drawer, or the arch underneath -- never measured it.
Lord -- Has not stone been thrown into the channel under the drawer?
Objected to.
Mr. Butler said if this had been done, it could not vitiate the charter -- those who did so might be indicted for a nuisance. If the counsel will show that stone was thrown into the channel to such an extent as to appear above the water at low water mark, he can do so. The defendants were not bound to keep a certain depth of water there.
Mr. Lord said it was competent to inquire whether the opening was 25 feet under water, so as to allow a free passage for navigation. The opening was for vessels to pass through, and not for carriages to drive through.
Mr. Griffin read the act which authorized John B. Coles, his heirs and assigns, to build a dam of stone all across the Harlem river, so as to stop and throw back the water for mills, &c. and to make a lock 8 ft. wide, and so as to allow vessels to pass through drawing 2 feet of water. The legislature did not mean that 74 gun ships should pass through there; the gentlemen might say that the drawer ought to have been so constructed as to allow every vessel with fixed standing masts to pass through that has been constructed since the construction of the world. The depth of water is not an issuable point here -- or whether there is 'a free passage for vessels with fixed standing masts.'
Court adjourned."
Source: Important Trial -- SUPREME COURT OF THE STATE OF NEW YORK, FOR THIS CIRCUIT -- Before Judge Edwards -- Wednesday, May 2, Morning Herald [NY, NY], May 3, 1838, p. 2, cols. 2-4.
"HARLEM BRIDGE COMPANY. -- A verdict was rendered in the Circuit Court yesterday, in relation to the Harlem bridge Company, the effect of which, according to the opinion of several lawyers who were in Court when it was delivered, will be to place the bridge at the disposal of the legislature. It is understood, however, that the Company will appeal from this verdict, and carry the case to the Supreme Court. -- Jour. Com."
Source: HARLEM BRIDGE COMPANY, The Evening Post [NY, NY], Oct. 19, 1838, p. 2, col. 3 (Note: Paid subscription required to access via this link).
"THE HARLEM BRIDGE CASE. -- It was rumored a day or two since in the city that a party of citizens of Harlem had taken possession of the gates and toll-houses of the Harlem Bridge, and that throughout the day the bridge had been passed by carriages and foot passengers free of toll. The origin or truth of this rumor we were unable to learn.
We have frequently been required of, for the opinion of the Supreme Court, in relation to the decision recently delivered on the subject matter above stated. On making due inquiry relative thereto, we find that the opinion yet remains in the hands of the Court, and cannot be laid before the public for some time to come. The decision is, in fact, however, a legal declaration that the bridge shall hereafter be made free, or in other words, 'that the proprietors no longer possess the right of exacting tolls from the public.' -- [Courier.]"
Source: THE HARLEM BRIDGE CASE, New-York American, Jun. 10, 1839, Vol. XXI, No. 2112, p. 2, col. 3.
"HARLEM BRIDGE. -- The old Harlem Bridge is now a free bridge. This happy consummation has been resisted for many years, but by a recent decision of the Court, it is at last opened for the public use. Attempts may be made to carry it to a higher Court in hopes of reversing the decision -- but we doubt whether it can be successful."
Source: HARLEM BRIDGE, Morning Herald [NY, NY], Jun. 19, 1839, p. 2, col. 4.
"COURT FOR THE CORRECTION OF ERRORS.
June 24, 1840.
Present -- Lieut. Governor, Chancellor, Clark, Edwards, Ely, Furman, Hawkins, Hopkins, Hull, Humphrey, Hunt, Hunter, Lee, H. A. Livingston, Mayard, Nicholas, Peck, Root, Sibley, Skinner, Tallmadge, Tompkins, Van Dyck, Verplanck, Wager, Works. . . .
Samuel M. Thompson, et al vs., The People, &c., [the Harlem Bridge case.] Mr. S. Stevens was further heard on the part of the plaintiffs in Error."
Source: COURT FOR THE CORRECTION OF ERRORS, New-York American, Jun. 25, 1840, Vol. XXII, No. 2225, p. 2, col. 4.
"PUBLIC MEETING
IN RELATION TO HARLEM BRIDGE. -- In pursuance of public notice, a Meeting of the inhabitants of Westchester and the towns adjacent, was held on Thursday, 20th June, at Feak's Tavern, at Eastchester, when George S. Fox, of Westchester, was appointed President, Ogden Hammond, Vice President, and Daniel W. Coit and Caleb Morgan, Secretaries.
The object of the meeting having been stated by Mr. Harrison, one of the relators [Note: "Relator" is a legal term meaning a private person at whose relation or on whose behalf an application for a quo warranto or mandamus is filed; the relator appears as one beneficially interested, but the action is maintained on his behalf as, in this case, by the State of New York.] in the suit of the People against the Harlem Bridge Company, on motion of Mr. Baretto, a committee of five were appointed to draft resolutions expressive of the sense of the meeting: Whereupon, William H. Leggett, and Andrew Findlay, of Westchester, Stephen S. Pell, of Pelham, Alexander Banks, of New Rochelle, and Richard Honbe, of Eastchester, were appointed said committee, who, after retiring, reported the following preamble and resolutions, which were unanimously adopted:
Whereas, This meeting has been officially informed, that the Haerlem Bridge Company have appealed from the decision of the Supreme Court to the Court of Errors, and that more expenses will be incurred by the relators in consequence thereof; therefore,
Resolved, That a committee of fifteen be appointed for the purpose of taking up subscriptions to aid in the defence of the suit now pending against the Haerlem Bridge Company, or any other that may grow out of it, and also to aid in the repair of the road called Cole's Road, adjacent to the Bridge, should the same be adjudged as belonging to the people.
Resolved, That the money collected be paid into the hands of the relators, to be by them disbursed according to the terms of the foregoing resolution.
Resolved, That it shall be the duty of the Relators to defend any individual who shall or may have contributed towards the expense of this litigation, against any suit which the Haerlem Bridge Company may institute for the recovery of tolls; or, if necessary, to proceed against the said Company, or their agents, by indictment or otherwise, for obstructing the highway or extorting tolls.
Resolved, That the thanks of this meeting, and of the public, are justly due to the Relators in the above cause, for their firmness and attention to their trust, which has been conducted by them, through circumstances of the most trying and vexatious character, to a favorable issue.
Resolved, That we have undiminished confidence in the justice of our cause, and the wisdom of our judges.
Resolved, That this meeting hereby confirms the powers of the Relators previously granted them, and also authorizes them to confer with the Corporation of New York, and to make any arrangements in relation to the Haerlem Bridge, which they may think necessary for the interest of the inhabitants of this County, or take any other measures needful in the premises.
The following persons were appointed, in pursuance of the first resolution, to collect subscriptions, viz: -- Ogden Hammond, Wm. H. Leggett, Geo. S. Fox and Gouverneur Morris, of Westchester; Caleb Morgan, of Eastchester; Wm. W. Holmes and James T. Eeils, of New Rochelle; Nathaniel Prime, of Eastchester; Josiah Purdy, of Rye; Thomas Cox, of Mamaroneck; Charles H. Purdy, of White Plains; Benjamin Tripp, of North Castle; Geo. W. Miller, of Bedford; James Townsend, of Pelham; and Joseph H. Anderson, of Harrison.
Whereupon, the meeting adjourned.
GEORGE S. FOX, President.
OGDEN HAMMOND, Vice Pres't.
DANL. W. COIT, }
} Secretaries.
CALEB MORGAN, } je221t"
Source: PUBLIC MEETING -- IN RELATION TO HARLEM BRIDGE [Notice], New-York American, Jun. 25, 1839, Vol. XXI, No. 2115, p. 3, col. 7.
"COURT FOR THE CORRECTION OF ERRORS
June 22, 1840.
Ordered, that the Court will take up the case of Charles Stearns vs. the people of the state of New York, next after hearing of the Harlem bridge case. . . ."
Source: COURT FOR THE CORRECTION OF ERRORS -- June 22, 1840, Albany Journal, Jun. 24, 1840, Vol. 11, No. 3204, p 2, col. 3.
"The Harlem Bridge case, it is said, will not be decided by the Chancellor at this term."
Source: [Untitled], New York Express, Aug. 24, 1840, Vol. 4, No. 1175, p. 2, col. 5.
"COURT FOR THE CORRECTION OF ERRORS -- Now sitting at Saratoga Springs.
Thursday, August 20. . . .
Thompson and others vs. The People, ex. rel. Taylor and others; (Harlem Bridge Case.) -- Decision postponed three weeks. . . ."
Source: COURT FOR THE CORRECTION OF ERRORS, New-York American, Aug. 27, 1840, p. 2, col. 5.
"COURT OF ERRORS. -- In addition to the decisions of the Court of Errors on Saturday, published in our Postcript of yesterday, we find the following . . .
Samuel M. Thompson and others vs. the People ex rel. Thomas C. Taylor and others. Harlem bridge case. Error from supreme court. The Chancellor, Messrs. Verplanck, Edwards, Furman, Root, Lt. Governor, Nicholas and Maynard. The judgment of the supreme court was reversed. Affirmance 10, Reversal 11. Repleader awarded, the plaintiffs to reply to the plea of the defendants do novo. Adjourned."
Source: COURT OF ERRORS, New-York American, Dec. 28, 1840, p. 2, col. 7.
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