
    SUPERIOR COURT OF BUFFALO — GENERAL TERM,
    FEBRUARY, 1894.
    City of Buffalo v. New York, Lake Erie & Western Railroad Co.
    Motion for reargument.
    
      George M. Browne, for plaintiff (respondent).
    
      Sprague, Morey, Sprague & Brownell, for defendant (appellant).
   Titus, Ch. J.

This ease comes before us on a motion for a reargument. When the case was considered by this court on a former hearing, it was stated in the opinion of the court (23 N. Y. Supp. 301) that, “ at page 235 of the minutes of the court below, it appears that it was stipulated that the testimony in regard to trains stopping at Hydraulic street might be stricken out, thus leaving no testimony in the case of a failure to stop before crossing any of the streets mentioned in the ordinance. It is, therefore, unnecessary to pass upon the validity or reasonableness of this section of the ordinance, because there is no evidence that the ordinance was violated by the defendant.” •

Although it appears from the return that such a stipulation was made and entered in the minutes of the court, the counsel for the respective parties now appear in open court and stipulate that the testimony relating to trains stopping at Hydraulic street was not stricken out, but that the stipulation had reference to trains stopping at Hydraulic street as tending to show an admission on the part of the defendant of the existence of that street, and that the testimony relating to the violation of the ordinance in not stopping the defendant’s trains at Hydraulic street is still in the case.

This being the situation, the question of the validity of the ordinance was not passed upon on the former hearing. The evidence establishes the fact that Hydraulic street is a public highway, and under the ordinance trains are required to make a stop at that street. This the evidence shows conclusively the defendant did not do, bnt passed it without stopping, in. violation of the ordinance.

The defendant claims the ordinance is invalid because it discriminates against the defendant corporation. The ordinance is general in its terms and applies to all railroads alike, and the fact that other roads do not cross the street does not seem to me to render the ordinance invalid if it is a reasonable exercise of the power conferred by the legislature upon the-common council by subdivision 7, section 17 of the charter, chapter 105 of the Laws of 1891.

“ To prohibit or regulate the use of locomotive engines and of steam, and to regulate other motive power and speed on any portion of any railroad within the city. * *

We think, in view of the evil sought to be remedied, that the ordinance is reasonable and valid within the cases cited in the opinion of the court when the case was first before us. We do not think the ruling of the court below on the admission or rejection of evidence was error, and the judgment should not be disturbed on that account.

This determination necessitates a modification of the order . made at the last General Term in which the judgment of the Municipal Court was modified by deducting from the recovery one penalty of fifty dollars, and reducing the taxable costs awarded in the court below from fifteen dollar's to eight dollars.

The order of the court should be that the. judgment of the Municipal Court be affirmed, with costs.

Hatch and White, JJ., concur.

Judgment affirmed, with costs.  