Southport Plank Road Co. v. Russell , 7 N.Y. St. Rep. 596 ( 1887 )

Per Curiam.

The judgment of the counter court of Che-mung county, reversing the judgment of the justice’s court, should be affirmed with costs, upon the opinion of Judge Dexter.

Follett, J.

Section 1 of chapter 245 of the Laws of

1853, provides:

“Seo. 1. Instead of the toll authorized to be demanded and received on plank-roads by section 35 of chapter 210 of the Laws of 1847, the following rates of toll may hereafter be demanded and received. ” The term ‘! instead of, ” means in the place or room of; and the plain intent of the legislature was to supersede section 35 by section 1; and the result was, that section 35 was repealed by implication. The intent could not have been more patent had that section read, that section 35 is hereby amended so as to read as follows. This being the clear intent, the earlier act (chap. 210, Laws 1847), must be read as though expressly amended by the latter act (chap. 245, Laws 1853), and all subsequent acts amendatory of, or supplementary to, chapter 210, Laws 1847, must be regarded as referring to the act as amended by chapter 245, Laws 1853. In no other way can effect be given to the various acts regulating tolls. These acts, and chapter 435, Laws 1876, relate to the same subject matter, and are to be read as though forming but a single act. Perkins v. Perkins, 7 Lans., 19; S. C., 62 Barb., 531; Smith v. The People, 47 N. Y., 330, 339; Sedg. on Stat. and Const. Law (2d ed.,) 209; Potter’s Dwarris, 189, 191; Alexander v. Mayor, etc., 5 Cranch, 1. I have no doubt that chapter 435, Laws 1876, is applicable to this plank-road.

I think the highway upon which the defendant resided united with the plank-road near the toll-gate through which the defendant passed.

The judgment should be affirmed, with costs.