The sun., 1889-11-28
The Third Avenue Railroad Cases.

The decision of the Court OF Appeals on
Tuesday In the two suits brought by the
city Of New York against the Third Avenue
Railroad Company to recover large amounts
y claimed to be due as license fees on the cars
OF that corporation, brings to an end an In
teresting and important litigation.
These two suits we're instituted, the first
in 1875 and the second In 1881, by WILLIAM
G. WHITNEY, then Counsel to the Corpora
ton. The earlier action came to trial in 1885
before Mr.. Justice LAWRENCE, and was de-
clded in favor Of the city. The second case,
which involved substantially the same ques-
tion. was tried in 1887 before Judge BEACH,
who followed the rulings Of Judge LAW
RENEE and decided In the same way.
In December 1852, the Common Council
passed resolution empowering MYNDERT
VAN ScHAICK and others to lay double
track railroad from the City Hall Park
through Chatham street, the Bowery, and
the Third avenue, upon certain conditions
and stipulations. One of the resolutions
provided that in consideration Of the faith
ful performance Of such conditions and
stipuations, the grantees should pay,
from the date OF opening the said railroad,
the annual license fee for each car now
allowed by law, and shall have licenses ac-
cordingly." By q subsequent agreement
made with the city In January. 1885, MYN-
pERT VAN ScHAICK and his associates ac-
cepted these conditions and undertook to
organize the Third Avenue Railroad Com
pany; and that company afterwards ac-
quired all the rights and privileges OF the
original grantees OF the franchise. Itturned
cut that at the time Of the passage of
the resolution Of the Common Council
and OF the making Of the agreement
there was no law or ordinance which
imposed any annual license fees upon
street cars in the city Of New York. There
was In existence, however. a city ordinance,
passed on May 8, 1889, relating to stages or
accommodation coaches. This ordinance
provided that every person licensed by vir-
tue thereof should pay to the Mayor OF the
city OF New York, for the use Of the city, for
every accommodation coach, or stage, or
stage coach which such person should keep,
the sum of $40, when the vehicle was drawn
by two horses. The claim which Mr.. WHIT
NEY made In behalf of the city when he be-
gan the two suits which have just been de-
cided WAS that the resolution OF the Com
mon Council subjectlng street cars OF the
Third Avenue Railroad to a license fee
meant something; that the phrase "the
annual license fee for each car now allowed
by law" related to such vehicles as were
then In common use In the city. which most
nearly resembled horse cars; that the old
fashioned stages were such vehicles, and
that the effect Of the resolution and agree
ment was to make the annual license fee of |
$40 then imposed upon stage coaches appli- |
cable to the new street cars as well.
This view was adopted by Judge LAW |
RENEE on the trial OF the cases. He held |
that both parties to the grant clearly in |
tended that license fee should be paid, and |
that inasmuch as the city stages or omni- |
buses were the only vehicles plying for hire
which corresponded in the general features
OF their traffic and route with the street
cars 1t was fair to assume that the parties
meant to exact and pay the same license as
that required for such vehicles. He cited an
early decision by Chief Justice DAILY In which
that learned Judge said: "a city railroad Is
4 mere omnibus on rails"
The Third Avenue Railroad COMPANY ap-
pealed to the General Term OF the Supreme
Court, where the cases were argued before
Judges VAN BRUNT BARTLETT and
MAcoMBER, who rendered q decision In
May, 1888, affirming the judgments in favor
OF the city. The prevailing opinion was
written By Presiding Justice VAN BRuNT
who declared that the Common Council, by
means OF the resolution and agreement In
question intended that the street cars OF the
defendant should be licensed and should
pay fec for such license. In so providing,
the parties must have had In mind some
particular liCenRa fac which Tyac thnn ol |
lowed by law. The cars were designed to
subserve the Same purposes as the pre-exlst-
Ing accommodation coaches for the use of
the public. and II was declared to be mani
fest that the license fec referred to in the
resolution and agreement was that paid by
the owners of such coaches.
Mr.. Justice MAcoMBER however, dis
sented from the opinion OF his associates at
the General Term. holding that, inasmuch
Ss 'here was no license fee legally imposed