Mayor of New York v. Third Avenue Railroad

16 N.Y. St. Rep. 128

Opinion

Macomber, J.

This case differs from action No. 1 only in this circumstance, namely, that the cars which it is claimed should pay the license fee, shown as the Grand Central line, which runs along Third avenue from the City Hall as far north as Thirty-sixth street, where it branches off for a block to Lexington avenue and thence runs up and down that avenue to Forty-second street and thence again westwardly up and down that street to and from the Grand Central depot.

_ The mere circumstance that the cars ran over the main line only as far north as Thirty-sixth street and not the full length of the railway, is not of any significance in determining the defendant’s liability to the plaintiffs. If the ordinance of 1839, which was the subject-matter of the opinion in action No. 1, was applicable to any of the cars of the defendant, it would be equally applicable to these. But, as we have already held, there was no ordinance in existence at the time of the agreement between the parties, imposing a license fee upon cars run over the defendant’s tracks, it follows that the judgment should be reversed, and a new trial granted, with costs to the defendant to abide the event of the action.