City of New York v. New York City Ry. Co. 

• Decision Date: 15 December 1908
• Parties: CITY OF NEW YORK v. NEW YORK CITY RY. CO. (three cases).
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 543

86 N.E. 565

CITY OF NEW YORK

v.NEW YORK CITY RY. CO. (three cases).

Court of Appeals of New York.

Dec. 15, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Three actions by the City of New York against the New York City Railway Company for license fees on cars. In the first action plaintiff recovered a verdict, and in the second and third actions the verdict was in favor of defendant. Plaintiff appeals from judgments in all the cases, as it deemed the judgment in the first case insufficient in amount. Judgments (124 App. Div. 936,109 N. Y. Supp. 1126) affirmed.

See, also, 55 Misc. Rep. 134,106 N. Y. Supp. 293.

The first of the above-entitled actions was brought to recover the sum of $115,150 ‘for passenger car license fees,’ alleged to be due from the defendant as the final successor of the Broadway & Seventh Avenue Railway Company, incorporated by chapter 513, p. 1042, Laws 1860, for the years 1902 to 1905, inclusive. Upon the trial of that action a verdict was directed in favor of the plaintiff for the sum of $22,850, and judgment was entered accordingly. The defendant did not appeal, but the plaintiff, deeming the amount of the recovery too small, appealed to the Appellate Division, which unanimously affirmed the judgment. The second action was brought to recover the sum of $15,800 for like fees alleged to be due from the defendant as the successor of the Dry Dock & East Broadway Railroad Company, incorporated by chapter 512, p. 1038, Laws 1860, for the years involved in the first action. The third action was brought to recover the sum of $11,300 for like fees alleged to be due from the defendant as the successor of the Bleecker Street & Fulton Ferry Railroad Company, incorporated by chapter 514, p. 1046, Laws 1860, for the same years. Upon the trial of the second and third actions a verdict was directed in each in favor of the defendant, and the respective judgments entered accordingly were affirmed by the Appellate Division. The plaintiff appealed to this court from the judgments rendered by the Appellate Division in all of said actions, and the appeals were argued together. The issues were the same in each, except that no plea of former suit in bar was interposed in the third. The charters of all the original companies involved in the three actions contained the same provision in relation to the payment of license fees.Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel), for appellant.

Joseph P. Cotton, Jr., for respondent.

VANN, J. (after stating the facts as above).

The questions of law involved in these appeals are the same in each action, with one exception to be noted thereafter, and for convenience the discussion will be confined in form to the first action, although what is said is equally applicable to all except as otherwise specified. The charter of the defendant's predecessor was granted by a special statute entitled ‘An act to authorize the construction of a railroad in Seventh avenue, and in certain other streets and avenues of the city of New York,’ which became a law on the 17th of April, 1860, ‘notwithstanding the objections of the Governor.’ Laws 1860, p. 1042, c. 513. By the first section of that act, certain persons and their assigns were authorized to construct, operate, and use the railroad in question upon certain designated streets and avenues. The second section thereof is as follows: ‘Said railroad shall be constructed on the most approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and shall be subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to time by ordinance prescribe; and to the payment to the city of the same license fee annually for each car run thereon as is now paid by other city railroads in said city; and the said persons and their assigns are hereby authorized to charge the same rate of fare for the conveyance of passengers on said railroad as is now charged by other city railroads in said city.’ Upon the trial it was stipulated by the parties that on the 17th of April, 1860, the day when the franchise was granted, no city railroad in the city of New York paid car license fees computed ‘on the basis of each and every car run by it during the year,’ but all that paid any license at all paid ‘on the basis of the greatest number of cars in daily use by the company at the busiest season of the year,’ and that for over 40 years prior to 1902, which is the first of the years now involved, the defendant and its lessors paid license fees for cars operated under said franchise upon the latter basis only. No question was raised as to the amount of the fee, and the only question litigated related to the proper method of computation. The defendant claimed that its obligation was to pay what other railroads were in fact paying when the act of 1860 was passed. The plaintiff claimed that the obligation of the defendant was not to pay what other city railroads were in fact paying at that date, but what they ought to have paid according to law.

The main reliance of the city is an ordinance passed by the common council on the 31st of December, 1858, which, among other things, provided that ‘each and every passenger railroad car running in the city of New York below One Hundred and Twenty-Fifth street shall pay into the city treasury the sum of fifty dollars annually, a certificate of the payment to be procured from the mayor,’ etc. If we assume that the Legislature had this ordinance in mind when it passed the act of 1860, should we further assume that it considered the letter thereof only, or the ordinance as then construed and enforced by the city authorities? Did it extend to exact a license fee for a car running but one day in a year to take the place of a disabled car, or a car borrowed for a special occasion, that had already paid the fee under another franchise, or for open cars substituted in the summer for the closed cars of winter? If the statute and ordinance are to be read together, both should receive a reasonable construction. It is insisted that it would not be reasonable to hold that all the cars, whether run regularly or not, were to be included, but those only that were used in conducting the ordinary business of the road as distinguished from those used rarely or for special...