
    CITY OF NEW YORK, Respondent, v. EIGHTH AVE. R. CO. et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    December 19, 1902.)
    Action by the city of New York against the Eighth Avenue Railroad Company and another. From an interlocutory judgment overruling demurrers to the complaints, defendants appeal. Reversed in part.
    Charles F. Brown, for appellants.
    Chase Mellen, for respondent.
   INGRAHAM, J.

The questions presented in this case are the same presented in the case of City of New York v. Sixth Ave. R. Co. (decided herewith) 79 N. Y. Supp. 319, except that in this case the defendant the Eighth Avenue Railroad Company, by an instrument in writing dated November 23, 1895, leased to the defendant the Metropolitan Street Railway Company its lines of railroad constructed and operated by it in the city of New York pursuant to its charter and grant by the mayor, aldermen, and commonalty of the city of New York, and the act of the legislature, and that the defendant Metropolitan Street Railway Company has ever since operated and maintained the same, and the passenger cars thereon. For the reasons stated in the opinion in that case, we think that the judgment appealed from, so far as it overrules the joint demurrer of the defendants and the separate demurrer of the Eighth Avenue 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. All concur.  