#### The City of New York, Respondent, *v.*The Union Railway Company of the City of New York, Appellant.

(Supreme Court, Appellate Term,

May, 1900.)

1. Mew York city — Duty of street surface railroad company to run cars every twenty minutes between twelve p. m. and six a. m.

The ordinance of the city of New York, passed in 1890, requiring a street surface railroad company to run a passenger car each way every twenty minutes of every day between midnight and six o’clock in the morning, was continued by sections 595 and 596 of the revised ordinances of said city, approved March 30, 1897, and, therefore, a consolidated street surface railroad company, incorporated in 1892, is subject to the penalty imposed by said sections for a failure or neglect in this respect.

8. Same — Construction of city ordinances — Continuous duty imposed.

Where a city ordinance of 1S90, imposing a duty on railroad companies “now” running cars in the streets, is re-enacted in 1897 in the same language, the ordinance is continuous and the duty in question is imposed upon a street railroad corporation incorporated between 1890 and 1897.

8. Evidence — Party cannot change position on appeal.

Where an action has been voluntarily litigated upon the theory that two city ordinances, only one of which was proved upon the trial, were identical, a party will not be heard, on appeal, to insist that the appellate court has no proper basis upon which to consider the effect which such identity may have upon the merits of the action.

4. Misnomer — May be corrected and must be pleaded.

The Municipal Court of the city of New York has power to correct a mistake in the name of a defendant. Where the misnomer is not pleaded it is waived.

*452Appeal by the defendant from a judgment of the Municipal Court of the city of Yew York, borough of The Bronx, rendered in favor of the plaintiff upon a trial had before the court, without a jury.

The nature of the action and the material facts are stated in the opinion.

Hoadly, Lauterbaeh & Johnson (Yathan Ottinger, of counsel), for appellant.

John Whalen, Corporation Counsel (Adrian T. Kiernan, assistant, of counsel), for respondent.

Giegeeich, J.

The action is for a penalty of $100, for an alleged violation of sections 595 and 596 of the Revised Ordinances of the city of Yew York, adopted by the mayor, aldermen and commonalty of the city of Yew York, March 9, 1897, and approved March 30, 1897, and which read as follows: “Section 595. The several city railroad companies now running cars on the surface of any of the streets in the city of Yew York are hereby directed and required to cause their cars to be run and operated on their tracks as frequently as public convenience may require, and not less than one car every twenty minutes, between the hours of twelve, midnight, and six o’clock, a. m., each and every day, both ways, for the transportation of passengers.

“ Section 596. Each and every company who shall neglect or refuse to comply with the provisions of section one of this ordinance, shall thereby incur a penalty of one hundred dollars for each and every such neglect or refusal, to be recovered by the corporation attorney as in the case of other penalties.” The violation for which the penalty was sued for, was stated to be, “ omitting and neglecting to run its (defendant’s) cars on its tracks, both ways, from Third avenue to the Southern boulevard on AYestehester avenue in the city of Yew York, every twenty minutes, on the 16th day of July, 1898, between the hours of 1:30 o’clock, a. m., and 5:30 o’clock, a. m.”

The action was commenced by the service of the summons upon the president of the “ Union Railway Company of the City of Yew York,” although the process was directed to “ The Union Railway Company.” Upon the application of the plaintiff, and *453against the defendant’s abjection and exception, the court permitted an amendment of the pleadings to be made, so as to read “ The City of New York against the Union Railway’ Company of the City of New York.” It is urged by the defendant that the allowance of such amendment was reversible error. The court below, however, had ample power to correct a mistake in the name of a party litigant.' Code Civ. Pro., § 723. Moreover, as the defendant did not plead the misnomer, it is deemed to have waived the mistake in the statement of the corporate name. Code Civ. Pro., § 1777.

The proof fails to disclose whether the defendant was, during die period in question, a domestic or foreign corporation, or that it had a place for the transaction of its business within the territorial jurisdiction of the Municipal Court, but it was shown by competent evidence adduced upon the trial, that the defendant operated a railroad within such jurisdiction, and this is sufficient to constitute a residence within the provisions of section 341 of the Code of Civil Procedure. See Plimpton v. Bigelow, 93 N. Y. 598, 599.

The defendant claims that in 1890, an ordinance was passed similar in its provisions to the enactment of 1897, and this fact seems to have been taken for granted upon the trial, although technically speaking the Ordinance of 1890 "was not formally admitted in evidence. The record discloses, that the issues herein were litigated in the court below upon the theory that the ordinance last referred to was before it, and that briefs were to be submitted upon the point there raised by the defendant respecting the meaning of the word “ now ’’ occurring in the Revised Ordinances of 1897, as well as in.the earlier Ordinance of 1890, and the effect of such identity upon the case at bar. Under these circumstances we fully agree with the position taken by the defendant’s counsel in his brief that “ the voluntary litigation of this case upon the theory of the identity of the Ordinances of 1890 and 1897, precludes the respondent from contending that the point was not properly raised below.” Hix v. Edison Electric Light Co., 12 App. Div. 627. In support of the question so raised, the defendant’s counsel has called our attention to the provisions of section 785 of the Revised Ordinances, put in evidence by the plaintiff, and which provides that “the provisions of any of the the foregoing ordinances, in so far as they are substantially the *454same as those of ordinances existing at the time these ordinances take effect, shall he construed as a continuance of such ordinances, modified or ¿mended according to the language employed in the foregoing ordinances and not as new ordinances.” It is argued for the defendant, in view of the foregoing provisions, that sections 595 and 596 *(supra)*have application only to such railroad companies as were running cars or had tracks laid in the territory where alleged violations occurred, *at or before*the time that the Ordinance of 1890 took effect, and that, since it was shown upon the trial that the defendant did not begin to operate cars, or have any corporate existence until the year 1892, such sections cannot apply to any omission or neglect on its part. This contention is without force. None of the authorities cited by the defendant’s counsel sustains the position -assumed by him. They hold, simply, that in construing re-enactments in which the language is doubtful or ambiguous, former statutes therein embodied are to be considered. 23 Am. & Eng. Ency. of Law, 317. In harmony with this canon of interpretation, reference is had to the second section of the ¡original ordinance, in view of the wording of section 596, which is a re-enactment *ipissimis verbis*of the same. It seems that the revisers literally incorporated such second section into the provisions of the above-cited section 596, without having taken into consideration the fact that a change in the number of the preceding section had taken place. As these two' sections are identical, it cannot fairly be claimed that the rights of the city have been lost by the lack of verbal identity. Matter of Estate of Prime, 136 N. Y. 347, 355. Moreover, it is expressly declared by section 785 *(supra),*that the re-enactment of an ordinance existing at the time when the Revised Ordinances went into; effect, shall be deemed a continuation thereof. This is but declaratory of a rule of statutory construction which was laid down by the court in the case last cited, in these words (p. 355): “Where the amended act re-enacts provisions in the former law, either *ipissimis verbis*or by the use of equivalent, though different words, the law will be regarded as having been continuous, and the new enactment as to such parts will not operate as a repeal so as to effect a duty accrued under the prior law, although, as to all new transactions, the later law will be referred to as the ground of obligation.” It follows from these views that the above-cited sections 595 and 596 must be treated as the declaration of the local legislative authority *455with respect to the subjects which they embrace, at the time of their approval, viz.: March 30, 1897 (United States v. Bowen, 100 U. S. 508, 513; Bate Refrigerating Co. v. Sulzberger, 157 id. 1, 39); and these sections clearly evince the purpose to compel all street surface railroads, then operating within the municipality, under a penalty of $100 for each neglect or refusal, to run cars at intervals of hot less than twenty minutes over the entire road, between twelve o’clock midnight and six o’clock in the morning. Had this action been brought under the Original ordinance, there might be some force in the argument of the defendant that the same was limited in its application by the word *“*now,” but since the suit was instituted under the Revised Ordinances, and so long as statutes must have effect according to- the intent of the enacting body, as manifested by the language employed, and in the light of the circumstances under which the acts are passed (People v. Supervisors, 67 N. Y. 109, 119), the construction sought to be placed upon said sections 595 and 596, is, under the circumstances, unreasonable, and if adopted would, so far as the defendant is concerned, destroy their utility and justify rather than prevent the inconvenience to the public.

The brief of the defendant’s counsel is largely devoted to a discussion of the proposition that the Revised Ordinances of 1897 apply only to such railroad companies as were in existence when the Ordinance of 1890 was approved, and a desire is therein expressed, in view of the pendency of similar actions against the defendant and of the confidence felt in the position so taken, “ to secure the opinion of this court upon that particular question.” We have examined with great care the points so presented and our views with respect thereto are above set forth. Somewhat inconsistently with this request upon the part of counsel, however, we note his argument that the proof fails to show that the defendant ran cars or had tracks laid in the territory in question when the Revised Ordinances took effect, but as the point was not made in the court below, it cannot now be raised for the first time on appeal. Flandrow v. Hammond, 148 N. Y. 129, 135; Hackett v. Edwards, Merrill & Co., 25 Misc. Rep. 778; Martin v. Home Bank, 160 N. Y. 190, 199; Baylies Tr. Pr. (2d ed.) 317. It is elementary that on appeal an appellant will be confined to the position he assumed upon the trial of the action. No exception can be made in a case brought to recover a penalty. Such an action is governed *456by the same rules that control the disposition of ordinary civil actions. Dill. Mun. Corp., § 410; People v. Briggs, 114 N. Y. 65. It appears, however, from a certain agreement bearing date the 2d day of July, 1892, that certain street surface railroads, including *“*the road, tracks,” etc., were consolidated and became known as ■“ The Union Railway Company of the City of New York,” and among the thoroughfares affected thereby was Westchester avenue. The evidence shows, furthermore, that the avenue last mentioned begins at Third avenue, and continues to the Southern boulevard, that, during the daytime of the period in suit, cars bearing the name *“*Union Railway Company ” were run along this avenue, and that no cars except those bearing such name were operated thereon. It also appeared, from the testimony of Police Officer Bull, that, on July 16, 1898, he covered his post from Prospect avenue to Third avenue, which extended over and along Westchester avenue; that he was not off post from half-past one until half-past five o’clock in the morning, and that during this time no cars passed him. Under these circumstances it must he held that the defendant did not, during the time in question, run any car whatever, and hence incurred the penalty sued for. The defendant was, during that part of the night, bound to run cars over its entire tracks at intervals of twenty minutes each, and it cannot escape liability upon the plea that the proof shows a failure or neglect to operate only a portion of its line. It may be that the failure of the defendant to run cars during the period in controversy was not 'due to its neglect or refusal, but since its counsel did not see fit to put in any proof, it is but fair to assume that the defendant does not seek exemption upon that ground.

For the reasons above stated, the judgment should be affirmed, with costs.

0’Q-OEMArr, J., concurs; Beekmau, P. J., concurs in result.

Judgment affirmed, with costs.