twenty years, which has been compelled to pay many millions of dollars
to abutting property owners for the easement in the public streets
appropriated by the construction and maintenance of the road, and
still the amount that the road will have to pay is not ascertained.
What liabilities will be imposed upon the city under this contract;
what injury the construction and operation of this road will cause to
abutting property, and what easements and rights will have to be
acquired before the road can be legally constructed and operated, it
is impossible now to ascertain."

It is true, that the city undertook "to secure to the contractor the
right to construct and operate, free from all rights, claims, or other
interference, whether by injunction, suit for damages, or otherwise on
the part of any abutting owner or other person." But another eminent
judge of the same court had characterized this as "a condition
absolutely impossible of fulfillment," and had said: "How is the city
to prevent interference with the work by injunction? That question
lies with the courts; and not with the courts of this State alone, for
there are cases without doubt in which the courts of the United States
would have jurisdiction to act, and when such jurisdiction exists they
have not hitherto shown much reluctance in acting.... That legal
proceedings will be undertaken which will, to some extent at least,
interfere with the progress of this work seems to be inevitable...."

Another difficulty was that the Constitution of the State of New York
limited the debt-incurring power of the city. The capacity of the city
to undertake the work had been much discussed in the courts, and the
Supreme Court of the State had disposed of that phase of the situation
by suggesting that it did not make much difference to the municipality
whether or not the debt limit permitted a contract for the work,