
    The City of New York, Respondent, v. Sixth Avenue Railroad Company, Houston, West Street and Pavonia Ferry Railroad Company and Metropolitan Street Railway Company, Appellants.
    
      Street railway company in New York city — what company, as lessee, is hound to pay to the city a license fee for each car run—the lessor, not running cars, is not.
    
    The complaint in an action brought by the city of New York against the Sixth Avenue Railroad Company, the Houston, West Street and Pavonia Ferry Railroad Company and the Metropolitan Street Railway Company, alleged that, prior to the incorporation of the Sixth Avenue Railroad Company, a contract was entered into between the city of New York and the incorporators or assignors of that railroad company which provided 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 licenses such sum as the Common Council shall hereafter determine; ” that this contract was confirmed by the charter of the railroad company, and that on December 81, 1858, the common council of the city of New York adopted an ordinance providing, “ Each and every passenger railroad car running in the City of New York below 125th street, shall pay into the city treasury the sum of fifty dollars, annually, for a license.”
    The complaint further alleged that on February 1, 1892, the Sixth Avenue Railroad Company leased its lines to the Houston, West Street and Pavonia Ferry Railroad Company, and that on December 12, 1893, the Houston, West Street and Pavonia Ferry Railroad Company was consolidated with the Metropolitan Street Railway Company, and that the latter railroad company had ever since operated the lines of the Sixth Avenue Railroad Company.
    This action was brought to recover license fees for the cars operated upon the lines of the Sixth Avenue Railroad Company from 1895 to 1899 inclusive.
    
      Reid, that the obligation of the Sixth Avenue Railroad Company to pay a license fee for each car used upon its road terminated when it leased its road and franchise to the Houston, West Street and' Pavonia Ferry Railroad Company;
    
      That when the Houston, West Street and Pavonia Ferry Railroad Company became merged in the Metropolitan Street Railway Company, the latter company assumed the former company’s liability for the payment of the license fees in question;
    That the only cause of action alleged in the complaint was a cause of action against the Metropolitan Street Railway Company for the license fees for the cars actually used by that company in the operation of the lines of the Sixth Avenue Railroad Company;
    That, consequently, the complaint was not demurrable on the ground that causes of action were improperly united therein, but that it was demurrable as to the Sixth Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company on the ground that it did not state a cause of action against those railroad companies;
    That the complaint, however, stated a cause of action as to the Metropolitan Street Railway Company and was not demurrable as to that company.
    Appeal by the defendants, the Sixth Avenue Railroad Company and others, from an interlocutory 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 14th day of May, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ joint and separate demurrers to the complaint.
    
      Charles F. Brown, for the appellants.
    
      Chase Mellen, for the respondent.
   Ingraham, J.:

This action is brought to recover license fees for the cars used in the operation of the railroad owned by the Sixth Avenue Railroad Company. The complaint, after alleging the incorporation of the plaintiff, alleges that the defendant, the Sixth Avenue Railroad Company, is a street surface railroad organized and existing pursuant to the provisions of the General Railroad Act (Laws of 1850, chap. 140 as amd.) and pursuant to the terms and conditions of a certain instrument in writing, dated September 6,1851, executed by and between the mayor, aldermen and commonalty of the city of New York and certain persons, incorporators or assignors of said railroad corporation therein mentioned ; that the defendant Houston, West Street and Pavonia Ferry Railroad Company is a street surface railroad corporation organized and existing under the General Railroad Act (Laws of 1850, chap. 140 as amd.); that the defendant the Metropolitan Street Railway Company is a street surface railroad corporation organized and existing under the provisions of the General Railroad Law (Laws of 1890, chap. 565 as amd.), having been incorporated on the 29th day of November, 1893, and May 18, 1894 ; that on or about February 1, 1892, the defendant the Sixth Avenue Railroad Company leased its lines of railroads and appurtenances in the city of New York to the defendant Houston, West Street and Pavonia Ferry Railroad Company, and that subsequently and on December 12, 1893, the said Houston, West Street and Pavonia Ferry Railroad Company was duly consolidated and merged into and with the defendant the Metropolitan Street Railway Company; that at all times thereafter the defendant Metropolitan Street Railway Company has been in full possession and control of and has operated the lines of railroad cars and other property of the defendant Sixth Avenue Railroad Company ; that in and by an instrument in writing, dated September 6, 1851, between the mayor, aldermen and commonalty of the city of New York and the persons, incorporators or assignors of said Sixth Avenue Railroad Company, it was provided, “ That each of said passenger cars to be used on said roads (meaning the cars used or to be used on the lines of railroad of said Sixth Avenue Railroad Company in the City of New York) shall be annually licensed by the Mayor; and there shall be paid annually for such licenses such sum as the Common Council shall hereafter determine ; ” that on December 31, 1858, the common council of the city of New York duly adopted an ordinance which provided: Each and every passenger railroad car running in the City of New York below 125th street, shall pay into the city treasury the sum of fifty dollars, annually, for a license; ” that during the years 1895 to 1899, inclusive, the defendant Metropolitan Street Railway Company used upon the lines of the said Sixth Avenue Railroad Company, below One Hundred and Twenty-fifth street, in the city of New York, passenger cars for which there became due, and it became liable to pay annually during each of said years, various sums of money, of which, after deducting the amount paid by the said corporation, there was due to the plaintiff the sum of $7,700.

The defendants demurred jointly to the complaint upon the ground that it appears from the face thereof that causes of action have been improperly united; and each defendant also demurred separately upon the ground stated in the joint demurrer, and also-upon the ground that the complaint does not state facts sufficient to constitute a cause of action against it. This demurrer was overruled, and from the interlocutory judgment entered thereon the defendants appeal.

It is apparent that the complaint alleges no cause of action against the Houston, West Street and Pavonia Ferry Railroad Company. Its only relation to the property was through a lease of its railway and property made by the Sixth Avenue Railroad Company to the Houston, West Street and Pavonia Ferry Railroad Company, and that subsequently the Houston, West Street and Pavonia Ferry Railroad Company became merged with the defendant, and thus lost its. corporate identity. While the corporate existence was retained so. far as it affected existing creditors at the time of the merger, as to all future transactions it became extinct by the merger, and all obligations of the Houston, West Street and Pavonia Railroad Company were assumed by and imposed upon the corporation that took its place,, and the Houston, West Street and Pavonia Ferry Railroad Company could, after its merger, create no new obligations or be liable for acts of the corporation into which it had been merged; and the fact that there were obligations incurred after the merger could not create an obligation of the company that had lost its corporate identity in consequence of the merger.

In his brief upon this appeal the learned counsel for the defendants states that the second ground of demurrer is not urged on-behalf of the defendants the Sixth Avenue Railroad Company and the Metropolitan Street Railway Company. He does insist, however, that causes of action are improperly united, and to sustain the-demurrer on this ground it must appear from the complaint that there are several causes of action alleged, and that they are improperly united in the complaint. If there is but one cause of action alleged against one of the defendants, and no cause of action is-alleged against the remaining defendants, causes of action have not. been improperly united. The cause of action that is alleged is based upon the obligation assumed by the acceptance by the Sixth Avenue Railroad Company of the franchise upon the conditions imposed upon it by its charter. By section 3 of chapter 110 of the Laws of 1854 it was provided that “ the respective parties and companies by whom such roads have been in part constructed, and their assigns, are hereby authorized to construct, complete, extend and use such roads in and through the streets and avenues designated in the respective grants, licenses, resolutions or contracts under which the same have been so in part constructed, and to that end the grants, licenses and resolutions aforesaid are hereby confirmed.” Prior to the passage of this act a grant or contract had been executed between the mayor, aldermen and commonalty of the city of New York and the persons, incorporators and assignors of the Sixth Avenue Railroad Company, in which it was provided 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 licenses such sum as the Common Council shall hereafter determine.”

By this agreement it is each of said passenger cars to be used on said roads ” that is to be licensed, and for such license there was to be paid annually such sum as the common council should thereafter determine. It was, therefore, the cars to be used in operating the roads for which a license was to be obtained. There was imposed upon the incorporators no obligation except for each car that was used in the operation of the railroad, and the only liability that the railroad incurred was a license fee for the cars so used. If the railroad company used no cars, it was under no obligation to obtain a license and was not liable for the fees required therefor.

On December 31, 1858, the common council of the city of New York passed an ordinance which provided that each and every passenger railroad car running in the City of New York * * * shall pay into the city treasury the sum of fifty dollars, annually, for a license.” The effect of this ordinance was to fix the amount of the license fee that the Sixth Avenue Railroad Company was required to pay as a condition of the grant of the franchise which it acquired by operation of the grant from the city, which was confirmed by the Legislature, and imposed no greater obligation upon the railroad company than was contained in the grant from the city. When, therefore, the railroad company ceased to operate its road, leasing its road and franchise to the Houston, West Street and Pavonia Ferry Railroad Company, it ceased to operate its road and ceased to use cars for that purpose. The obligation upon this particular corporation to obtain a license for the cars used by its lessee, or to pay a license fee therefor, was no longer applicable to the Sixth Avenue Railroad Company, who used no cars in the operation of their road. That there was imposed upon the lessee company an obligation to obtain a license for the cars which it used in the operation of the road, and to pay a license fee therefor, is settled by the case of Mayor v. Twenty-third Street R. Co. (113 N. Y. 311). Judge Earl, in delivering the opinion of the court, there says: The entity called a corporation consists of the sum total of all its charter powers and rights and all its charter obligations and duties, and such powers and rights cannot be effectually divorced from such obligations and duties. The latter are correlatives to the former and constitute the consideration for the corporate franchises, and their performance may be exacted as a condition of corporate existence. Hence, when the defendant took the property, rights, privileges and franchises of the Bleecker Street and Fulton Ferry Railroad Company, it took them burdened with its charter obligations. Taking the place of that company as to its charter powers and rights, it necessarily took its place as to its charter obligations and duties. It could not have and exercise the former without discharging the latter.”

The lessee company having thus assumed the obligations imposed upon the lessor by its charter, was bound to perform such obligations ; but as this obligation was imposed upon the Sixth Avenue Railroad Company only for the cars used in operating the road, when it used no cars in said operation it was under no liability to pay the license fee therefor.

I think, therefore, that the only cause of action alleged in this' complaint was a cause of action against the Metropolitan Street Railway Company for the license fees for the cars actually used by that company in the operation of the road; and for that reason this joint and the separate demurrer that causes of action were improperly united were properly overruled.

It follows that the judgment appealed from, so far as it overrules the separate demurrers of the Sixth Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company, should be reversed and the demurrers sustained, with costs in this court and in the court below; and that the judgment, so far as it overrules the separate demurrer of the Metropolitan Street Railway Company, should be affirmed, with costs, with leave to the Metropolitan Street Railway Company to answer on payment of costs in this court and in the court below.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Judgment, so far as it overrules the separate demurrers of the Sixth Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company, reversed and the demurrers sustained, with costs in this court and in the court below; and, so far as it overrules the separate demurrer of the Metropolitan Street Railway Company, affirmed, with costs, with leave to the Metropolitan Street Railway Company to answer on payment of costs in this court and in the court below.  