
    The City of New York, Respondent, v. New York City Railway Company, Appellant. (Car License C-2.)
    First Department,
    May 15, 1908.
    Railroad — franchise construed — license fees.
    Where a grant of a street railroad franchise provides that each car to be used on the road shall be annually licensed by the mayor and that the common council fix the amount of such license, which is done by an ordinance fixing a certain sum for each and every car, the grant and ordinance taken together require a license for each car operated.
    
      Appeal by the defendant, the New York City Bailway 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 action is brought to recover car license fees for the years 1902 to 1905 inclusive, for cars run and operated over the Sixth avenue franchise by the defendant as lessee. The Sixth Avenue Bailroad Company was incorporated on the 29th day of December, 1851, pursuant to the provisions of the General Bailroad Act, being chapter 140 of the Laws of 1850, and succeeded to the ownership and control of a certain grant made by the mayor, aldermen and commonalty of the city of New York on the 6th day of September, 1851, which conferred the right to construct a line of street railway and operate thereon passenger cars for the transportation of passengers for hire, upon certain terms and conditions, among which was the following : That each of said passenger cars to be used on said roads shall be annually licensed by the Mayor, and there shall be paid annually for such license such sum as the Common Council may hereafter determine.” The railroad was constructed in part prior to the 4th day of April, 1854, and the grant was ratified and confirmed by the provisions of section 3 of chapter 140 of the Laws of 1854, which took effect on that day. An ordinance was thereafter adopted by the common council of the city of New York, and approved by the mayor on the 31st day of December, 1858,.section 1 of which provides as follows : Each and every passenger railroad car running in the City of New York below One Hundred and Twenty-fifth Street shall pay into the city treasury the sum of fifty dollars annually for a license, a certificate, of such payment to be procured from the Mayor, except the small one-horse passenger cars, which shall each pay the sum of twenty-five dollars annually for said license as aforesaid.”

In the revision of the ordinance by section 584 of article 17 of chapter 7 of the Tie vised Ordinances of 1897, this ordinance, so far as applicable to the line in question, was re-enacted without material change. The two following sections of the ordinance required that the certificate of the payment of the license fee be posted in each car, and imposed a penalty for operating a car without it. This grant and ordinance, taken together, clearly required a license fee for each car operated over the line, and showed beyond question that the common council so intended. There was no conflict in the evidence, and the verdict was directed for the amount to which the plaintiff was entitled oh the theory that it was the duty of the defendant to pay a license fee for each car run and operated over the line during the respective years in question. The opinion in the action between the same parties with respect to the Hinth avenue franchise, argued and decided herewith, governs 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.) The only difference in the material facts not already stated is that on the trial of this case the court excluded the evidence with respect to the basis upon which payments of license fees were previously made, and with respect to the partial payment made for the year 1902, which defendant claims constituted an accord and satisfaction for that year.

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

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

Judgment affirmed, with costs. 
      
      See Proc. Bds. Aldermen & Councilmen, Vol. 26, p. 423.— [Ref.
     
      
       See Brown’s Greater Mew York Gen. Ord. (Anno. 1905), 83, § 584; Revised Ordinances, 1897, § 584; City Record, Mar. 11, 1897, vol. 25, pt. 1, p. 957, § 584; Proc. Bd. Aldermen, vol. 225, p. 815, § 584. See, also, Revised Ordinances, 1880, chap. 8, § 274; City Record, Dec. 29, 1880, vol. 8, pt. 4, p. 2235, § 274; Proc. Bd. Aldermen, vol. 160, pp. 929-935; City Record,, Mar. 19, 1875, vol. 3, pt. 1, p. 499; Revised Ordinances, 1859, p. 402, chap. 41, § 1. For present ordinance see Code of Ordinances, pt. 2, § 56; Cosby’s Code Ord. (Anno. 1907), 283, § 56; Ord., Res., etc., Bd. Aldermen, 1906, No. 632, vol. 9, p. 585, § 56 — [Rep.
     