Opinion
December Term, 1902.
Judgment, so far as it overrules the joint demurrer of the defendants, and the separate demurrers of the Forty-second Street and Grand Street Ferry Railroad Company and the Metropolitan Crosstown Railway Company, reversed and the demurrers sustained, with costs in this court and in the court below; and so far as it overrules the separate demurrer of the Metropolitan Street Railway Company, affirmed, with costs, with leave to the Metropolitan Street Railway Company to answer on payment of costs in this court and in the court below.
This action is brought to recover license fees for cars used by the defendant, the Metropolitan Street Railroad Company, in the operation of a street railroad. The complaint, after alleging the incorporation of the plaintiff and of the defendants, alleges that the defendant Forty-second Street and Grand Street Ferry Railroad Company on or about February 21, 1863, became the assignee of one John T. Conover and others of the rights, privileges and franchises conferred upon them by virtue of chapter 515 of the Laws of 1860; that in and by said act it was provided among other things that said Conover and others and their assigns should pay to the city the same license fee annually for each car run upon the lines of said railroad as was then paid by the other city railroad in said city; that by an ordinance duly approved December 3, 1858, the common council of said the mayor, aldermen and commonalty of the city of New York, being thereto duly authorized, did ordain as follows: "Each and every passenger railroad car running in the City of New York below 125th Street shall pay into the city treasury the sum of fifty dollars annually for a license;" that on or about May 18, 1893, the defendant Forty-second Street and Grand Street Ferry Railroad Company leased to the defendant Metropolitan Crosstown Railroad Company its lines of railroad and appurtenances, passenger cars and other property, and that on or about May 28, 1894, the defendant Metropolitan Crosstown Railroad Company was consolidated into and with the Metropolitan Street Railway Company, and has ever since operated and maintained and been in the control of the lines of railroad of said defendant Forty-second Street and Grand Street Ferry Railroad Company and the passenger cars run thereon; that during the years 1896 to 1899, inclusive, there were used, run and operated upon the lines of the railroad of the defendant Forty-second Street and Grand Street Ferry Railroad Company, below One Hundred and Twenty-fifth street in the city of New York, passenger cars for which there became due and the defendants became liable to pay to the plaintiff car license fees of which there remained due to the plaintiff the sum of $1,000 with interest thereon. The defendants jointly demurred to this complaint upon the ground that several causes of action were improperly united, and each defendant separately demurred upon the same ground and also upon the ground that the complaint does not state facts sufficient to constitute a cause of action against it. For the reasons stated in the case of City of New York v. Sixth Ave. R.R. Co. ( ante, p. 367) we think that the judgment appealed from, so far as it overrules the joint demurrer of the defendants, and the separate demurrers of the Forty-second Street and Grand Street Ferry Railroad Company and the Metropolitan Crosstown Railroad Company, should be reversed and the demurrers sustained, with costs in this court and in the court below; and that the judgment, so far as it overrules the separate demurrer of the Metropolitan Street Railway Company, should be affirmed, with costs, with leave to the Metropolitan Street Railway Company to answer on payment of costs in this court and in the court below. Van Brunt, P.J., Patterson, Hatch and Laughlin, JJ., concurred.