
    The Mayor, etc., of New York, Resp’t, v. The Third Ave. Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1889.)
    
    Railroads—License pee to be paid by the Third Ave. R. R. Co.
    The common council of the city of New York, by certain resolutions, empowered defendant’s assignors to construct and operate defendant’s railroad, and, in consideration thereof, they were “to pay the annual license fee for each car now allowed by law.” An ordinance then in force required the payment of a license fee for every ‘ ‘ accommodation coach or stage coach,” etc. Held, that the resolutions subjected the defendant to the payment of the tax imposed by such ordinance; that the term “ coach ” or “ stage'coach” was the same as “ car.”
    
      Appeal from judgment of the supreme court, general term, first department, reversing judgment entered in favor of plaintiff "by direction of the court.
    
      John E. Parsons and James E. Lowery, for app’lt; D. J. Dean, for resp’t
    
      
       Affirming 16 N. Y. State Rep., 122.
    
   Danforth, J.

The inquiry is as to the construction of certain resolutions passed "by the plaintiff’s common council, December 18, 1852, accepted by Van Schaick and others, the defendant’s assignors, and which formed the basis of an agreement between the mayor, aldermen and commonalty of the city of New York, of one part, and Van Schaick and his associates of the second part Those resolutions conferred a right to construct, run and operate the defendant’s railroad, People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y, 396; 21 N. Y. State Rep., 8, and the present action is brought to enforce payment of the consideration to which, by their terms, the plaintiff claims to be entitled. The obligation of the grantee is expressed in the resolutions. It follows the grant of poiver to the plaintiff’s assignors, and, in consideration thereof, and of other matters, it declares that they, “ the said parties, shall pay from the date of opening the said railroad the annual license fee for each car now ” (December, 1852) “ allowed by law, and shall have licenses accordingly.”

At that time an ordinance entitled “ Of stages and accommodation coaches,” passed May 8, 1839, and amended in 1844, was in force and required the payment of a license fee to the city of New York, “for its use,” for every accommodation “coach or stage coach ” any person “ shall keep, the sum of $30 when drawn by four horses, and $20 when drawn by two horses.”

The defendant, by virtue of the power and privileges conferred by the resolutions, has every year run over its road a large number of passenger cars, each drawn by two horses, and under the ordinance above set out the plaintiff has recovered a verdict for license fees of twenty dollars each, according to the number of cars run within the last six years. The courts below have given judgment upon the verdict, holding that the application of the ordinance was as contended by the plaintiff, and that the resolutions, according to the ordinary and natural interpretation of their words, subjected the defendant to the payment of the tax imposed by it We are of the same opinion.

The general meaning or governing sense of the resolutions which recite the defendant’s obligation is obvious enough. It is that in consideration of the franchise it bargains for it shall pay a license fee; it is to pay such fee from the opening of the road, annually, and it is to pay, not a fee thereafter to be imposed, but a fee already imposed and then existing in favor of the city. The ordinance then actually in force contains everything necessary to answer those conditions, but the contention of the defendant is that it enumerates as its subjects “a stage,” “ an accommodation coach,” “a stage coach,” and is altogether silent as to “railroad car,” or even “ car.” We are unable to see the force of the observation. In definition, a “car,” or “coach,” or “stage,” or a “ stage coach,” is the same. They are vehicles that turn, or that ■run by turning on wheels. Place boards over or between wheels and we have a platform car, adapted to freight; place benches or chairs upon the platform and we still have a car, but adapted to passengers, and then easily termed a carriage. Instead of benches or chairs, put on the platform the body of a “ stage coach,” and we have such a “ railroad car ” as served at the inauguration of the earliest railroad in our state. It is plain that by adaptation and improvement “the modern railway car has been evolved from the old-fashioned stage coach.” The American Railway, 281.

In common language a railroad carriage designed for passengers is called, indifferently, a “coach” or “car.” In every collection of words arranged according to the ideas which they express, these, and others with them, will be found classed together, as having the same signification. Neither the word “ coach,” “ stage ” or car” can be said to be words of art, or to have any legal or fixed meaning distinguishing one from the other, or any one of them from several other terms implying a vehicle or conveyance. We are, therefore, to look at the context of the resolution, and the circumstances under which it was adopted, and especially at the matter which the parties had in contemplation.

First. There was a grant by one party of a valuable franchise or privilege in conveying passengers along one of the avenues of the city.

Second. Over that avenue there were, at that time, three stage lines, accommodating a large travel, and these paying for each stage or coach a license fee of $20 to the city of New York. In the nature of things, the new mode of transportation would succeed the old. Its purpose was the same. The railroad would drive off the stages, or, if travel sufficed, the new vehicle and the old would, at least, run in competition. If driven off, the license fees would be lost to the city, and if both survived there was no reason why one company should be favored, and the other not, or the city be denied its revenue from either. In fact, with the competition of the defendar' road, the stage lines were completely superseded.

Third. The receipt of revenue, as part of the consideration of the granting of the new franchise, was the object aimed at by the city, and its payment was part of the price agreed upon by the orner party; both then had a license fee in contemplation,' and it is conceded that there was no other than that prescribed by the ordinance, supra, on which plaintiff now relies. We think the fee mentioned in the ordinance was within the intention of both parties, as expressed in the agreement, and concur with the court below in the conclusion that its payment may properly be enforced. The judgment appealed from is, therefore, affirmed.

All concur.  