
    The City of New York, Respondent, v. New York City Railway Company, Appellant. (Car License C-3.)
    First Department,
    May 15, 1908.
    Judgment — railroad — license fees.
    A judgment in a prior action is not a bar to an action by a city to recover license fees for each car operated on a street railroad, where it appears that the judgment was based on a stipulation as to the greatest number of cars used; that the practice was to pay license fees on that basis, and the right of the city to recover for each car operated on the line was not presented for adjudication or decided.
    Appeal by the defendant, the New York City Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of November, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      Joseph P. Cotton, Jr. [R. H. Neilson with him on the brief], for the appellant.
    
      Terence Farley [Theodore Connoly and Frank B. Pierce with him on the brief], for the respondent.
   Laughlin, J.:

This is an action to recover license fees for cars run and operated by the defendant over the Eighth avenue line, só called, during the years 1902, 1903, 1904 and 1905. The duty to pay the license fees arises under a grant containing the same provision as that with respect to the Sixth avenue line involved in the action between the same parties, argued and decided herewith, and under the same ordinance. It is not questioned that the duty of paying license fees for those years devolved on the defendant. The plaintiff has recovered the amount of the license fees owing, upon the basis that it was incumbent upon the defendant to pay a license fee for each car run and operated over the line. In all respects, with one exception to be presently considered, the opinions in the actions between the same parties, argued and decided herewith, relating to license fees for cars run over the Ninth and Sixth avenue lines are applicable to the questions presented by this appeal. (See City of New York v. New York City R. Co., Car License C-4, 126 App. Div. 36; City of New York v. New York City R. Co., Car License C-2, 126 id. 39.)

In this case, however, the defendant pleaded and introduced in evidence a judgment between the mayor, aldermen and commonalty and the Eighth Avenue Railroad Company, recovered in the year 1886, as res adjudicata of the basis upon which the plaintiff is entitled to recover license fees. The judgment in that case was based upon a stipulation made upon the trial showing the greatest number of cars used by the defendant during the respective years in question there, and testimony that the uniform practice had been to pay license fees on that basis. A perusal of the record of that trial, offered in evidence upon the trial of this action and of the opinions of the court at General Term and in the Court of Appeals, fails to show that the question as to the right of the plaintiff to recover for each and every car run and operated over the line was presented by the evidence for adjudication or was decided. (Mayor, etc., of N. Y. v. Eighth Ave. R. R. Co., 43 Hun, 614; affd., 118 N. Y. 389.) It is not sufficient to render a judgment res adjudicata or to have it operate as an estoppel between the parties and their privies that a question might have been litigated in the action; it must appear that the question was litigated and decided. (Stannard v. Hubbell, 123 N. Y. 520; Springer v. Bien, 128 id. 9 ; House v. Lockwood, 137 id. 259; Stokes v. Stokes, 155 id. 591; Rudd v. Cornell, 171 id. 114; Stokes v. Foote, 172 id. 327.)

It follows that the judgment should be affirmed, with costs.

Ingraham, McLaughlin, Houghton and Soott, JJ., concurred.

Judgment affirmed, with costs.  