Mayor v. . Third Avenue Railroad Co. , 33 N.Y. 42 ( 1865 )

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,

Judgment reversed.