79 N.Y.S. 319 | N.Y. App. Div. | 1902
This action is brought to recover license fees for the cars used in the operation of the railroad owned by the Sixth Avenue Railroad Company. The complaint, after alleging the incorporation of the plaintiff, alleges that the defendant, the Sixth Avenue Railroad Company, is a street surface railroad organized and existing pursuant to the provisions of the General Railroad Act (Laws of 1850, chap. 140 as amd.) and pursuant to the terms and conditions of a certain instrument in writing, dated September 6,1851, executed by and between the mayor, aldermen and commonalty of the city of New York and certain persons, incorporators or assignors of said railroad corporation therein mentioned ; that the defendant Houston, West Street and Pavonia Ferry Railroad Company is a street surface railroad corporation organized and existing under the General Railroad Act (Laws of 1850, chap. 140 as amd.); that the defendant the Metro
The defendants demurred jointly to the complaint upon the ground that it appears from the face thereof that causes of action
It is apparent that the complaint alleges no cause of action against the Houston, West Street and Pavonia Ferry Railroad Company. Its only relation to the property was through a lease of its railway and property made by the Sixth Avenue Railroad Company to the Houston, West Street and Pavonia Ferry Railroad Company, and that subsequently the Houston, West Street and Pavonia Ferry Railroad Company became merged with the defendant, and thus lost its. corporate identity. While the corporate existence was retained so. far as it affected existing creditors at the time of the merger, as to all future transactions it became extinct by the merger, and all obligations of the Houston, West Street and Pavonia Railroad Company were assumed by and imposed upon the corporation that took its place,, and the Houston, West Street and Pavonia Ferry Railroad Company could, after its merger, create no new obligations or be liable for acts of the corporation into which it had been merged; and the fact that there were obligations incurred after the merger could not create an obligation of the company that had lost its corporate identity in consequence of the merger.
In his brief upon this appeal the learned counsel for the defendants states that the second ground of demurrer is not urged on-behalf of the defendants the Sixth Avenue Railroad Company and the Metropolitan Street Railway Company. He does insist, however, that causes of action are improperly united, and to sustain the-demurrer on this ground it must appear from the complaint that there are several causes of action alleged, and that they are improperly united in the complaint. If there is but one cause of action alleged against one of the defendants, and no cause of action is-alleged against the remaining defendants, causes of action have not. been improperly united. The cause of action that is alleged is based upon the obligation assumed by the acceptance by the Sixth Avenue Railroad Company of the franchise upon the conditions imposed upon it by its charter. By section 3 of chapter 110 of
By this agreement it is “ each of said passenger cars to be used on said roads ” that is to be licensed, and for such license there was to be paid annually such sum as the common council should thereafter determine. It was, therefore, the cars to be used in operating the roads for which a license was to be obtained. There was imposed upon the incorporators no obligation except for each car that was used in the operation of the railroad, and the only liability that the railroad incurred was a license fee for the cars so used. If the railroad company used no cars, it was under no obligation to obtain a license and was not liable for the fees required therefor.
On December 31, 1858, the common council of the city of New York passed an ordinance which provided that “ each and every passenger railroad car running in the City of New York * * * shall pay into the city treasury the sum of fifty dollars, annually, for a license.” The effect of this ordinance was to fix the amount of the license fee that the Sixth Avenue Railroad Company was required to pay as a condition of the grant of the franchise which it acquired by operation of the grant from the city, which was confirmed by the Legislature, and imposed no greater obligation upon the railroad company than was contained in the grant from the city. When, therefore, the railroad company ceased to operate its road, leasing its road and franchise to the Houston, West Street and Pavonia Ferry Railroad Company, it ceased to operate its road and
The lessee company having thus assumed the obligations imposed upon the lessor by its charter, was bound to perform such obligations ; but as this obligation was imposed upon the Sixth Avenue Railroad Company only for the cars used in operating the road, when it used no cars in said operation it was under no liability to pay the license fee therefor.
I think, therefore, that the only cause of action alleged in this' complaint was a cause of action against the Metropolitan Street Railway Company for the license fees for the cars actually used by that company in the operation of the road; and for that reason this joint and the separate demurrer that causes of action were improperly united were properly overruled.
It follows that the judgment appealed from, so far as it overrules the separate demurrers of the Sixth Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company, should be reversed and the demurrers sustained, with costs in this
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Judgment, so far as it overrules the separate demurrers of the Sixth Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company, reversed and the demurrers sustained, with costs in this court and in the court below; and, so far as it overrules the separate demurrer of the Metropolitan Street Railway Company, 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.