
    (138 App. Div. 338.)
    CITY OF NEW YORK v. NEW YORK CITY RY. CO.
    (No. 2.)
    (Supreme Court, Appellate Division, First Department.
    May 6, 1910.)
    Appeal from Appellate Term.
    Action by the City of New York against the New York City Railway Company. From a determination of the Appellate Term (117 N. Y. Supp. 919) affirming a Municipal Court judgment for plaintiff, defendant appeals.
    Reversed and dismissed.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, MILLER, and DOWLING, JJ.
    
      Joseph P. Cotton, Jr. (Robert H. Neilson, on the brief), for appellant.
    Theodore Connoly (Terence Farley and Frank B. Pierce, on the brief), for respondent.
   LAUGHLIN, J.

This appeal presents the same question of law as was presented by the appeal taken by the same defendant in action No. 1, argued, and decided herewith. 123 N. Y. Supp. 132. This action is to recover penalties for the operation of five cars under the Eighth Avenue Railroad Company’s franchise, which was conferred by a grant reserving to the common council the right to fix a license fee for each car and obligating incorporators of the railway company to pay the same. With respect to the operation by this defendant of cars under the Eighth Avenue franchise, it was recently held by this court (City of New York v. N. Y. City Ry. Co., 126 App. Div. 42, 110 N. Y. Supp. 913) that the defendant was liable for the license fees prescribed by the ordinance enacted pursuant to the reservation contained in the grant, and the judgment was affirmed by the Court of Appeals on our opinion (193 N. Y. 679, 87 N. E. 1117).

It follows, therefore, on the authority of the opinion in action No. 1, that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs to the appellant, and the complaint should be" dismissed, with costs. All concur.  