City of New York v. New York City R. Co. No. 2

Full title: THE CITY OF NEW YORK, Respondent, v . NEW YORK CITY RAILWAY COMPANY…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 6, 1910

138 App. Div. 138 (N.Y. App. Div. 1910)

123 N.Y.S. 136

Opinion

May 6, 1910.

Joseph P. Cotton, Jr. [ Robert H. Neilson with him on the brief], for the appellant.

Theodore Connoly [ Terence Farley and Frank B. Pierce with him on the brief], for the respondent.

LAUGHLIN, J.:

This appeal presents the same question of law as was presented by the appeal taken by the same defendant in action No. 1, argued and decided herewith. ( City of New York v. New York City R. Co., No. 1, 138 App. Div. 131.) This action is to recover penalties for the operation of five cars under the Eighth Avenue Railroad Company's franchise, which was conferred by a grant reserving to the common council the right to fix a license fee for each car and obligating incorporators of the railway company to pay the same. With respect to the operation by this defendant of cars under the Eighth Avenue franchise it was recently held by this court ( City of New York v. New York City R. Co., 126 App. Div. 42) that the defendant was liable for the license fees prescribed by the ordinance enacted pursuant to the reservation contained in the grant, and the judgment was affirmed by the Court of Appeals on our opinion ( 193 N.Y. 679).

It follows, therefore, on the authority of the opinion in action No. 1, that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs to the appellant, and the complaint should be dismissed, with costs.

INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.

Determination and judgment reversed, with costs, and complaint dismissed, with costs.