
    James G. Byars, Appellant, v. Bennington and Hoosick Valley Railway Company, Respondent.
    (No. 2.)
    
      Franchise granted by highway commissioners to construct a railway—condition imposed “that but one fare shall be exacted foi' a single passage over said road” construed.
    
    A franchise granted by the highway commissioners of the town of Hoosiclc recited that an application had been made by the Hoosiclc Railway Company for leave to construct, operate, maintain and use a surface railroad through, upon and along the highway extending north from the north boundary and limits of the village of Hoosiclc Falls to North Hoosiclc, and thence east along said highway from North Hoosiclc to the village of Walloomsac in said town of Hoosiclc, After other recitals, in which it -was stated that the commissioners had determined to give their consent to the construction, maintenance and operation of said railroad, a resolution granting the consent was set forth, upon sixteen express conditions. Among those conditions was one numbered 14, which provided “ that but one fare shall be exacted for a single passage over said road.’’
    The Hoosick Railway Company was at the time engaged in operating a surface railroad within the village of Hoosick Falls. It was conceded that none of the sixteen conditions mentioned in the franchise related to the road within the village of Hoosick Falls, except the 14th, which it was claimed did relate to that part of the road.
    
      Held, that the words, “ said road,” as used in the 14th condition of the franchise, included only the road mentioned in the preamble of the franchise as extending from the north boundary of Hoosick Falls to the village of Walloomsac and did not include that part of the road within the village of Hoosick Falls;
    That, consequently, it was lawful for the railroad company to charge a passenger a five-cent fare from a point within the village of Hoosick Falls to a point in the town of Hoosick outside of such village and another Ave-cent fare from the latter point to a further point;
    That if the railroad company did not exact more than one fare from a point in the town of Hoosick to another point in said town, it was not guilty of a violation of the condition of the franchise;
    That the franchise should be presumed to contain all the conditions upon which the company was permitted to construct its road, and that the liability of the railroad company under the franchise could not be extended by an alleged oral agreement between the highway commissioners of the town and the persons representing the railroad company, to the effect that the railroad company should only charge one fare from points within the town to any point within the village of Hoosick Falls.
    .Appeal by the plaintiff, James G. Byars, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 19th day of March, 1904, upon the dismissal of the complaint by direction of .the court after a trial at the Rensselaer Trial Term, and also from an order made at such Trial Term and entered in said clerk’s office on the 19th day of March, 1904, directing the dismissal of the complaint.
    The action is under section 39 of the Railroad Law (Laws of 1890, chap. 5G5) for a penalty. The defendant was formed by the consolidation of different surface railroads, including the Hoosick Railway Company which ran from a point in the village of Hoosick Falls to the village of Walloomsac in the town of Hoosick. In the town of Hoosick Boulter’s blacksmith shop is the North Hoosick station upon said road part way between the village of Hoosick Falls and "Walloomsac. The plaintiff was charged five cents for traveling from a point within the village of Hoosick Falls, to Bouker’s blacksmith shop. Another fare of five cents was then demanded of him to travel from Bouker’s blacksmith shop toward the village of Walloomsac, which he refused to pay and for which he was ejected from the car.
    
      J. K. Long and Thomas S. Fagan, for the appellant.
    P. R. Chapman and George E. Greene, for the respondent.
   Smith, J.:

The plaintiff’s claim is not that the defendant was violating any statutory regulation as to the amount of fare which might be charged, but that at the time of the granting of the franchise to the Hoosick Railway Company by the commissioners of highways of the town of Hoosick it was therein provided that one fare only should-be charged over the said road. The main question argued before us, as before the trial court, was as to what was meant by this clause in the franchise from the highway commissioners of the town of Hoosick. That franchise recites that an application had been made by petition of the Hoosick Railway Company for leave to construct, operate, maintain and use a railroad on the surface of the soil through, upon and along the highway extending north from the north boundary and limits of the village of Hoosick Falls to North Hoosick, and thence east along said highway from North Hoosick to the village of Walloomsac in said town of Hoosick. After other recitals, in which it was stated that the commissioners had determined to give their consent to the construction, maintenance and operation of said railroad, a resolution granting the consent is set forth, upon certain express conditions. Among those conditions was one numbered 14, which provided “ that but one fare shall be exacted for a single passage over said road.” At the time the franchise was granted the railway company was operating a street surface railway within the village of Hoosick Falls. The plaintiff contends that the words said road,” as used in the said franchise given, included not only the road as included in the preamble of the resolution, as extending from the north boundary of Hoosick Falls to the village of Walloomsac, but also that part of the road within the village of Hoosick Falls. Whatever reason there may have been for including the right to ride into the village of Hoosick Falls upon one fare, the commissioners have clearly not stated that right in the franchise given. Of the sixteen conditions expressed in the franchise upon which it was given not one of them is claimed to relate to any other part of the road than that recited in the preamble, to wit, the road from the north boundary of Hoosick Falls to the village' of Walloomsac, except the fourteenth condition. In fact, nowhere in the franchise given is any part of the road within the village of Hoosick Falls in any way mentioned. The granting of the franchise to the road to be constructed and maintained, from the north boundary of Hoosick Falls to the village of Walloomsac, upon condition that one fare only shall be charged by “said road” is an unambiguous grant unconditioned as to any fare that shall be charged beyond the limits of the town.

It is further claimed that surrounding circumstances cause a latent ambiguity which is open to explanation by extrinsic evidence. That the village of Hoosick Falls was the center from which the trading was done by residents of the town, and that the road in the village of Hoosick Falls was constructed, and part of the road within the town at the time that the franchise was given, are facts which are claimed to present such ambiguity as to what was meant by the use of the words “ said road.” The words “ said road,” however, are legally described by the description of the road to which the franchise was given, to wit, the road from the north boundary of Hoosick Falls to the village of Walloomsac. The facts to which reference is made might well have entered into the minds of the highway commissioners in granting their franchise upon the condition of more extended rights to the residents of the town. The condition clearly expressed in the franchise, however, cannot be enlarged by facts which might well have led the commissioners to impose different conditions. In this action to recover this penalty the right of the railroad company must be determined by the franchise as given, and not by the franchise as it might have been given.

Again, it is claimed that by oral agreement between the commissioners and those representing the railroad company one fare only was to be charged from points within the town upon said road to any point within this village of Hoosick Falls. It is not alleged or claimed that the consolidated road had any notice of any such roral agreement. Moreover, it would be a most unsafe rule of law to allow an additional condition to those already stated in the written franchise to be added by parol. The written franchise should be conclusively presumed to contain all the conditions upon which the company is permitted to construct its road.

Finally, it is claimed because under the fare taken in the village of Hoosick Falls the plaintiff was allowed to ride part way in the town to ISTorth Hoosick, the charging of an additional fare from Horth Hoosick to Walloomsae is the charging of more than one fare within the town in violation of the conditions of the franchise. While no more than one fare is exacted from one point in the town to another point in the town there can be no violation of the condition of the franchise. The charging of one fare from a point in the village to a point in the town outside the village, and the charging of another fare from that point to another point within the town is not an exaction of more than one fare for travel within the limits of the town within the legal interpretation of the condition.

Our conclusion, therefore, is that the complaint was properly dismissed and the judgment should be affirmed.

Judgment and order unanimously affirmed, with costs.  