
    The Staten Island Rapid Transit Co., Resp’t, v. The Mayor, etc., of New York, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    1. Ferries—Receipts.
    Where the lessee of a ferry is also the owner of a railroad from its terminus and a single sum is charged by it for passage over the ferry and railroad, this does not make the whole of such sum ferry receipts.
    
      2. Same.
    One of the leases to plaintiff fixed no minimum rate of ferriage and • the other made it five cmts. It made its rate of ferriage ten cents to those who stopped at its terminus, and charged ten cents to his destination for each one who crossed and went on over its railroad, dividing the latter sum between the railroad and ferry. The city knew of such division and received percentages based upon it. Held, that the parties by such action had settled the matter upon a fair basis, and that the city was not injured by such construction.
    Appeal from judgment of the supreme court, general term,, first department, affirming judgment in favor of plaintiff.
    Action to restrain the city from forfeiting certain ferry leases on the ground of non-payment of certain percentages reserved therein.
    
      D. J. Bean, for app’lt; W. W. MacFarland, for resp’t.
    
      
       Affirming 25 N. Y. State Rep., 1034.
    
   Finch, J.

Under "both leases of the ferries the lessees were only bound to run their boats to Staten Island. They were free to choose their port of arrival and departure, and were at liberty to have but one. They chose to have but one and selected St. George as that one, it being the nearest point to New York. The passengers landed there who desired to go further were carried there by rail to points on the north and east shore. The lessees of the ferry were, also, the owners of the railroad. That ownership was theirs absolutely, and the lines owed no tribute to the city of New York. If under the old system the boats coasted both shores, no law prevented a change, and the leases imposed no objection beyond a ferry to the island. The lessees were bound to pay certain percentages on the gross ferry receipts. They were not bound to pay upon the railroad receipts. Where one sum was paid for one passenger over the ferry and over the railroad, that did not make the whole of such sum ferry receipts. The ferry owned part and the railroad part, and the only question possible would be one of equitable division and distribution. The lessees made such distribution. So far as we can see it was a fair division of the total charge between the ferry on the one hand and the railroad on the other. ' The city had full knowledge of it. By its commissioners of accounts it investigated the books of the lessees, ascertained the division made, assented to the basis adopted and thereafter accepted the percentages founded upon that division. But all this time the city, it seems, was asleep, and at last woke up. Its officers knew that the lessees charged ten cents for every passenger carried to St. George, and ten cents to his destination for every passenger who crossed the ferry and went on over the rapid transit lines, and insisted that the latter ten cents was, like the former, all ferriage and gross receipts of the water route. For the purpose of tribute to the city the railroad had no fares but ran for nothing.

The argument may be formulated thus: The lessees charge a jDassenger to St. George ten cents; that, therefore, is the rate of ferriage; if they take another passenger to St. George and then beyond on the railroad also for ten cents, the ferriage remains the same and the railroad fare is nothing. The argument assumes that the lessees carry both passengers across the water for the same price. They do not. The railroad fare, by itself, is five cents or just half of the whole sum paid. In otlier words, the passenger who stops at the shore pays ten cents for his ferry passage, but he who goes inland over the railroad pays five cents for his ferry passage and five more for the railroad fare. To such passengers the ferriage is reduced one-half. The leases permit it. One of them fixes no minimum rate of ferriage and the other makes it five cents. Below that the lessees have not gone. They have a right to carry passengers for five cents across the water, and they do carry one class of them for that, because they pay as much more to the railroad. The trouble is, and is only,, that they charge other passengers who stop at St. George ten cents. The corporation counsel concedes that the lessees might charge all passengers alike five cents ferriage, and if it did that the city could not and would not complain. The objection then is at bottom that the lessees discriminate between their passengers and charge one man twice as much as another. Is it the business of the city as lessor to redress that wrong if it be one ? Is it the general guardian of all the common carriers within its limits ? If the discrimination is wrong it is a public wrong and not at all one to the city indts character of lessor. Its complaint in that character strikes me as at least odd. It is, that instead of charging five cents ferriage for every passenger and so reducing the basis of the city’s revenue, it obstinately persists in charging some passengers ten cents, and so increases the city’s revenue from the ferriage. Passing by the moral attitude of such a claim, its business attitude as between lessor and lessee is indefensible. If there is discrimination the city gets the benefit of it, and cannot question what does not harm it and what its contract permits.

So far as lessor and lessee are concerned the only question is, what have been in truth and in fact the actual ferry receipts, not what they fought to have been, or might have been; and so whether the ferry fare to railroad passengers has been actually reduced to five cents, or kept as to those passengers at ten cents, the rapid transit fare being nothing. The situation itself and the acts of the parties in respect to it are sufficient to settle that question as it was settled by the courts below.

The city’s contention, if successful, would necessarily end in one of three things. Either all ferriage would drop to five cents, so as to leave five more for the transit line, in which case the gross receipts and so the city’s percentage would be reduced; or the price to railroad passengers would go to fifteen cents, because the ferriage alone must be ten, and the railroad could not run for less than five, in which case the public welfare, for which the city pleads, would suffer; or the lessees would be obliged to pay to the city a percentage upon their railroad as well as their ferry earnings, which would Be clearly unjust.

We think the parties themselves settled the matter ^.pan a fair basis, and adopted a just construction.

The judgment should be affirmed, with costs.

All concur.  