
    The Peekskill, State Camp and Mohegan Railroad Company, Appellant, v. The Village of Peekskill, Respondent.
    
      When damages, specified in a contract for the construction of a railroad in a village, will he construed to he liquidated and not a penalty.
    
    A provision in a. contract entered into by a street railroad corporation and the trustees of the village of Peekskill, to the effect that, in consideration of a franchise granted to. the railroad corporation, the-latter would constructs railroad within a year from the date of the acceptance of the franchise, and that upon its failure so to do, the sum of $10,000, required to be deposited with the village . ás a guaranty of good faith, should ‘‘be and become absolutely the property of the village of Peekskill for its uses and purposes as liquidated damages for said failure and not by way of penalty,” will, where it appears that.the sum specified is not unreasonable in amount, nor disproportionate to the actual damage which the village may have sustained in view of the difficulty of estimating the actual damages resulting from a failure to construct the -road, be construed to mean liquidated damages, and not a penalty.
    Appeal by the plaintiff, The Peekskill, State Camp and Mohegan Railroad Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 27th day of March, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      C. Walter Artz and Frank Sullivan Smith, for the appellant.
    
      David Wiley Travis, Franklin, Couch and Leverett F. Crumb, for the respondent.
   Hatch, J.:

The determination of the question presented by this appeal rests upon undisputed facts The plaintiff is a railroad corporation, organized under the general provisions of the Railroad Law. It presented an application. to the board of trustees of the village of Peekskill for a franchise to construct, maintain and operate a surface street railroad in the streets'of the said village. The franchise was granted, and the parties entered into a contract in pursuance of a resolution duly passed by said board of • trustees. This contract provided, inter alia, that in consideration of the franchise the plaintiff would establish, within one year from the date of its acceptance, a street railroad in certain streets of the village, and operate and maintain the same. In the event of failure upon its part to so construct, maintain and operate the same, the sum of $10,000, which it was required to deposit with the treasurer of the village of Peekskill as a guaranty of good faith, should immediately, upon the expiration of the year, “ be and become absolutely the property of the village of Peekskill for its uses and purposes, as liquidated damages for said failure, and not by way of penalty.” There was' nothing defective in the form or substance of the grant which the railroad company acquired of the village. There was, however, no compliance with its terms and conditions, and the plaintiff never established, maintained and operated a street railroad as required by the grant, and failed to fulfill the contract made by it with the village authorities. The plaintiff seeks by this action to have the grant annulled, the contract rescinded, and a recovery had of the $10,000 deposited as aforesaid. The plaintiff avers in its complaint that the franchise and contract were impracticable in requirement, and that it was induced to. accept the same, execute the contract and pay the money, by the fraud of the defendant. What fraudulent acts were done by the defendant, its officers and agents, the complaint fails to state ; and the case is barren of proof to sustain the allegation, even to the extent made. If the plaintiff was foolish enough to accept an impracticable grant, it cannot be heard to complain* as there is nothing to show that it did not understand just what it was getting, and in fact obtained what it contracted for. We have heard before of fraud practiced by corporations to obtain a grant; but this is the first time we have been asked to consider as fraudulent a grant made by a municipal corporation- for which a • railroad corporation asked. We must decline to believe that this corporation was defrauded' when it asked for what it obtained, and obtained that for which it asked.

The only question which the case presents relates to the $10,000. Is this sum to be treated as a penalty, or as liquidated damages for" the breach of the contract ?. The village made provision. for a railroad for the quick transit of its. inhabitants. The plaintiff agreed to furnish it and failed. It may be that, at the time when this corporation asked for and .obtained the grant, ■ others stood ready to furnish what the. village was desirous of obtaining. The village has no railroad, and is, therefore, damaged:. How much, it is damaged may not be, and probably is not, susceptible of proof. It may be damaged in a very large sum, and yet, under any legal rule, it- would be quite difficult, if not impossible, to prove its damage. By the. terms of the contract, the village evidently had in mind three things which it wished" certainly to provide for: First, to compel a deposit by the plaintiff as a guaranty of good faith; second, to provide a fund to protect itself from any damage it might sustain by the construction of the-road, in the interference with -and tearing up of its streets; 'third, for such damages. as it might sustain by a failure to construct the road. As the difficulty of legally establishing its damages under the last two heads would be attended with great embarrassment, and Under the last nearly impossible, we think it was the intent of the defendant, fairly to be gathered from the contract and the surrounding circumstances, to contract for this sum as liquidated damages, and not as a penalty. The sum does not seem to be unreasonable in amount, or disproportionate to the actual damage which may have been sustained. It is needless to discuss and1 point out the distinction which exists in the cases relating to stipulations for damage in cases of breach of contract. In some of them, although the stipulation in words provided that the sum "specified -should be regarded as liquidated damages, the- courts construed it as meaning a penalty. But this was done to prevent great injustice being worked, and relieve from hardship. Ho case in this country has. gone to the extent of holding, where the nature- of the contract clearly showed that damage may have been sustained, which would be difficult to establish, and a sum, not unreasonable, was stipulated for as liquidated damages for the. breach, that such stipulation was to be treated as a penalty. On the contrary, under such circumstances, the court has uniformly given effect to such stipulation as one for liquidated damages in accordance with its terms. (Clement v. Cash, 21 N. Y. 253; Ward v. H. R. B. Co., 125 id. 230; 1 Sedg. on Dam. [5th ed.] § 394, et seq.) There is nothing in this case which should take it out of the operation of the rule applied in the cases cited.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  