(dissenting.) Action No. 1. It is true, as the learned justice says in his opinion, that it was the intention of the plaintiffs and defendant, at the time of making the agreement that there should be paid, for the use of the streets, some compensation or license fee; but it by no means follows that a mere intention on the part of both contracting parties, the one to demand and the other to agree to pay some license fee or compensation for the use of the streets, that resort may be had to an ordinance which manifestly in its inception W'as not'intended to be applicable to those vehicles which are run upon fixed iron tracks, and known always as horse cars. Indeed, the plaintiffs never presented this claim until nearly 23 years after the passage of the ordinance, and not until they had been defeated in an action to recover the license fee of $50 a car from the defendant, which had been imposed by virtue of an ordinance passed subsequently to the agreement mentioned above. See Mayor, etc., v. Railroad Co., 33 N. Y. 42. The true construction of the agreement and ordinance is that the defendant was required to pay a license fee only to the extent as was then provided for railroad cars. Id is not competent for the plaintiffs, after ascertaining that they as well as the defendant had been laboring under a mistake of fact, so to enlarge the terms of the agreement as to make the ordinance in reference to stage-coaches applicable. Why should that ordinance be hit upon as imposing the license fee contemplated by the parties rather than a license fee for the running of hackney coaches ? The explanation of the learned judge at the trial is that the stage-coaches ran upon routes very nearly the same as the route of the street-car company, and were actually replaced by the use of the street cars themselves. This seems to us to be an unsatisfactory reason, for any intention to resort to other ordinances than some one relating to street cars is not discoverable in the terms of the resolution or the agreement. At the time of the passage of the resolution, the term “car” had a well-defined, unmistakable, signification. It could never be confounded with stages or an accommodation coach. The stages ran from *401particular stands, used all portions of the streets, and landed their passengers at the curbstone on either side; in the winter time they were often replaced by sleighs. F urthermore, there was imposed upon the street-car company the duty of repairing the pavement of the streets for a certain distance on each side of the track, and many other obligations were imposed which did not exist in the case of the stages or accommodation coaches, so called. There is hot, so far as we are able to discover, anything in the attending circumstances to enable us to have resort, in order to maintain the action, to the almost obsolete ordinance relating to stages. The parties acted upon a mutual mistake in m aking the agreement in question. Some stress is laid, in the brief of one of the counsel for the appellants, upon the fact that the defendant never was licensed by virtue of the provisions of the title relating to stages and accommodation coaches; but no greater significance could be given to this circumstance than lias already been pointed out, for it is alleged, and not denied, that the plaintiff, at least from the time this claim was made, was willing and ready at all times to grant a license to the defendant. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event of the action.
Action Wo. 2. This case differs from action No, 1 only in this circumstance, namely, that the cars which it is claimed should pay the license fee, known as the “Grand Central Line,” which runs along Third avenue, from the City Hall as far north as Thirty-sixth street, where it branches off for a block to Lexington avenue, and thence runs up and down that avenue to Forty-second street, and thence again westwardly up and down that street to and from the Grand Central depot. The mere circumstance that the cars ran over the main line only as far north as Thirty-sixth street, and not the full length of the railway, is not of any significance in determining the defendant’s liability to the plaintiffs. If the ordinance of 1839, which was the subject-matter of the opinion in “Action No. 1,” was applicable to any of the cars of the defendant, it would be equally applicable to these. But, as we have already held, there was no ordinance in existence at the time of the agreement between the parties imposing a license fee upon cars run over the defendant’s tracks. It follows that the judgment should be reversed, and a new trial granted, with costs to the defendant to abide the event of the action.