Mayor v. Third Avenue Railroad — 33 N.Y. 42

Majority

p. 42

The Mayor, Aldermen and Commonalty of the City of New York, Respondents, v. The Third Avenue R. R. Co., Appellant.

Headnote

The provisions of the ordinance of the common council of the city of New York, passed December 31, 1858, requiring city rail road companies to pay a license fee of fifty dollars for each car run by them, or become liable to a penalty, &c., is not an exercise of the power of municipal regulation, reserved by the terms of the grant to those companies.

A penalty cannot be imposed for non-compliance with an illegal exaction. .

Demurrer to defendant’s answer. The action was for penalties incurred for running cars without payment of a license fee of fifty dollars on each car, as required by a city ordinance passed December 31, 1858.

The answer denied the liability of the defendant, and the authority of the city to exact a license fee, or impose a penalty for running the cars without payment of such fee, &c.'

Clarkson N. Potter, for the appellant.

Our decision at the March Term in the case of the Mayor, &c., New York, v. Second Avenue Rail Road Company, substantially disposes of this question. ( 32 N. Y., 5 Tiffany, 261.) The increase of the sum payable as a license fee under the ordinance of 1858, beyond the amount provided for by the stipulations in the contract of 1853, so far as. it was in derogation of the defendant’s rights, must be deemed illegal and void. It was not the exercise of the power of municipal regulation reserved by the terms of the grant, and which the common council had no authority to alienate; but it was simply an attempt by one of the parties to a contract to revoke.a provision inserted for the benefit of the other.

The common council could not lawfully impose a penalty for non-compliance with an illegal exaction. The judgment should be reversed, with judgment for the defendant on the demurrer.

All the judges concurring, , 1

Judgment reversed.