15 N.Y.S. 297 | New York Court of Common Pleas | 1891
The action was brought upon an ordinance of the common council of the city of New York requiring the city surface railroad companies to run cars both ways every 20 minutes between midnight and 6 o’clock a. m., each day, and imposing a penalty of $100 for each neglect and refusal to comply with the ordinance. The complaint alleged a failure on the part of the defendant to run its cars, as required by the ordinance, on East Broadway, from Scannell to Catharine street, on July 11,1890. The defense was a general denial, and an averment that the ordinance in question was unreasonable, was never lawfully passed, that the common council liad no authority to adopt it, and tliat the defendant has complied with its charter in relation to the operation of its railroad and the running of cars thereon. The violation of the ordinance by this company was proved, it being shown that on a part of its route on East Broadway cars were not run on the night in question, as required by the ordinance. The company operates three branches of road, called, respectively, the “Avenue B Line,” the “Avenue D Line,” and the “Cortlandt-Street Line.” The cars of the Avenue B and Avenue D lines run upon the same track through a part of East Broadway, but the cars of the Avenue D line run only upon the track between Clinton and Columbia streets; and it was upon this part of the road that the defendant neglected to run the cars on the Avenue D line, as well as running the Cortlandt-Street line. On the Avenue B line only was there a compliance with the ordinance on the date in question. It was shown by defendant that the company subsequently, and within 20 days after the ordinance went into effect, commenced and continued to run the Avenue D line as required by the ordinance, and the defendant claims that the reason why the cars of that line were not run before was that it was practically impossible to do so. The ordinance in question was passed May 20, 1890, and approved by the mayor June 3, 1890, but that day its operation was suspended until July 8th, by resolution of the common council. The company claimed that it could not procure the necessary horses and break them in for the work within the period from June 3d to July 8lh, and that the ordinance was unreasonable, because compliance with it was impossible at the time of the alleged violation. It appears, however, that within that period the defendant was able to make the necessary preparations to run its cars on the Avenue B line, as required by the ordinance; and that it only commenced to buy the extra horses that it needed for the other routes on July, 1st. As compliance with the ordinance on’ such other routes was actually commenced 28 days thereafter, it conclusively appears that there was ample