City of Oswego v. Collins , 45 N.Y. Sup. Ct. 171 ( 1885 )

Hardin, P. J.:

According to the finding of fact made by the referee, persone •who had been guests, or who intended to be guests of, the Doolittle house, were accustomed to ride in the omnibus driven by defendant. Such persons only were entitled to use the omnibus. Had it been a public conveyance, as for instance a stage ooach run for the general public, or a street car, the whole public would have been entitled to( use it, and could not have been excluded from it. If the omnibus] had been in use at a seminary to carry students to and from the ■seminary to railroad stations and steamboat landings, it would have been known as a private conveyance with which the general public would have had no concern or right to use. If the ordinance had •omitted the word “ public ” as a word qualifying “ conveyance,”, the omnibus in question would have been within the words of the •ordinance. We are asked to give the same effect to the ordinance .as though the word “ public ” was omitted therefrom. On the contrary, we must give effect to the word “ public ” when we construe the ordinance.

Inasmuch as the public were not entitled to use the conveyance in question, as the public at large is entitled to use a “ public conveyance,” we should not give the proper construction to the facts •disclosed if we were to declare the omnibus which the defendant drove a “ public conveyance.”

If the defendant had taken the same omnibus and driven to and from a fair ground, soliciting passengers from the public, and receiving patronage from the public, and compensation for riding in it, then it would have fallen under the class known and denominated “ public conveyances.” (City of Brooklyn v. Breslin, 57 N. Y., 591.) Upon tbe facts stated in. tbe referee’s report, we are of tbe opinion that his conclusion of law, that the omnibus in question was not a “public conveyance” is correct. We, therefore, should affirm the conclusion reached by the referee.

Judgment of the County Court of Qswego County affirmed* with costs.

Boardman, J., concurred.