110 N.Y.S. 720 | N.Y. App. Div. | 1908
This is an action to recover license fees for the cars run over that part of its line formerly owned and operated by the Ninth Avenue Eailroad Company during the years 1902, 1903, 1904 and 1905.
It appears by the record that on the 20th day of December, 1852, the board of assistants of the city of New York, by resolution, granted to,three individuals the right to construct railroad tracks in and along certain streets and to operate cars thereon for the conveyance of passengers for hire, upon certain conditions, and, among others, one as follows, to wit: “ Provided that the said cars shall be licensed by the mayor, and the grantees shall pay the annual fee of
The grant is to be construed most favorably to the public. (Mayor v. Dry Dock, E. B. & B. R. R. Co., 47 Hun, 199 ; affd., 112 N. Y. 137.) The rule of practical construction applied in some cases to determine the intent of the Legislature and to contracts should not, I think, be applied in the case at bar. Here the contract was not construed by the party but by its fiscal officers in accepting from a’ corporation less than the amount of license fees to which the city was clearly entitled and the terms of the contract were not ambiguous or open to the construction adopted. The city clearly reserved the right to license each car and' clearly imposed upon the acceptors of the grant the duty of paying the license fee for each and every car used on the line. The taxpayers of the municipality should not be deemed estopped for all time from collecting the license fees clearly reserved to them by a grant of this character, merely because the fiscal officer for one year or during successive years accepted from them without question less license fees than the amount reserved in unambiguous terms in the grant. As we view the contract, it is too plain and clear for the application of the rule of practical construction. The defendant and its predecessor in title are doubtless protected by the Statute of Limitations against the enforcement of any liability for unpaid license fees which became payable more than six years prior to the commencement of the action. Upon each successive comptroller, however, devolves the duty of collecting the license fees to which the city is entitled under this grant. The conditional grant being clear and unambiguous the duty of the comptroller and the right of the city cannot be affected by the acceptance by former comptrollers of a smaller amount
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.