Peter C. Kelly, Respondent, v. New York City Railway Company, Appellant

Peter C. Kelly, Respondent, v. New York City Railway Company, Appellant. First Department, May 24, 1907. Railroads — penalty for. refusing transfer — passenger hot entitled to transfer by round-about route. Under subdivision 8 of section 4 of the Railroad Law a corporation has power to regulate the time and manner in which passengers and .property shall he transported, and the compensation to be paid therefor, but must exercise that power in subordination to the law and within reasonable limitations. Section 104 of the Railroad Law, which imposes a penalty on railroads within the limits of an incorporated city or village for refusing transfers, should not be construed to mean that a passenger is entitled to transfers allowing him to take a round-about route to his destination. He is only entitled to. a transfer carrying him by the shortest and most direct route. McLaughlin and Scott, J.T., dissented, with opinion. Appeal by the defendant, the New York City. Railway Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of February, 1907, reversing a judgment of the Municipal Court in favor of the defendant in an action brought by the plaintiff to recover a penalty of fifty dollars under the provisions of section 104 of the Railroad Law (Laws of 1890, chap, 565,. § 105,. as renumbered and amd. by Laws of 1892, chap. 676). The plaintiff boarded a south-bound car of the defendant on. Third avenue at Bayard street, paid a fare of five cents, and was given a transfer to a Chambers street car going in a westerly direction. ■ This transfer was shown to' the conductor of the Chambers street, car and retained by the plaintiff,-who changed to a northbound Greenwich street car, his destination being Greenwich and Leonard streets.. The conductor of the Greenwich- street car, under a rule of the defendant, refused- to honor this transfer, going in a reverse direction from that in which the plaintiff had started, and-the latter was obliged to pay a second fare. This action is brought to recover the penalty of fifty dollars prescribed by section-104 of the . Railroad Law (as amd,),. and. the broad question presented upon- this appeal is whether the rule or regulation of the defendant,, requiring. passengers making use of transfers only in the same general direction, of their initial trip, is: a reasonable regulation and consistent with the terms of the statute here under consideration. The learned Municipal Court: held that this rule was. a reasonable one, relieving the defendant of the penalty prescribed, and the Appellate Term has reversed that judgment... The; appeal-by .permission coihes- to this Court. - Paul D. Gra/odth and James I. Quackenbush, for the appellant. Paid If. Pelletrea/a,iov the respondent.. ■' Joseph G. Williamson,t Jr., E- Y. P. Eetchum and John Loew, for parties, intervening. [MAJORITY — Lambert, J.:] Lambert, J.: Subdivision ,8 of section 4 of the Bailroad Law (as amd. by Laws of 1-892, chap. 676) provides that a corporation .shall have power “ to regulate the time and manner in which passengers and property-'shall-be transported, and the .compensation, to be paid therefor.” This power must be exercised in subordination to the law and- within reasonable limitations;- There came a time in the history of the transportation facilities-'of the State when it was deemed wise and' beneficial to the public to permit of the consolidation of street surface railroads, by lease Or. otherwise, and to preserve the rights of 'the public, tinder the increased power's of these corporations, it was provided by section 104 of the Bailroad Law (as amd.)'-as follows: “ § 104. Contracting corporations to carry for One fare ; penalty.— Every such corporation entering into such contract shall" carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to malte one continuous-trip, between such points-for one single fare, not higher" than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall Upon demand, and ■with.out extra charge, give to each passenger paying one single fare a transfer, entitling shell passenger to one continuous trip" to’any point or portion of ahy railroad embraced' in such contract,' to. the .end that the-public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. .For every refusal to comply . with the requirements of this section the corporation so refusing shall-forfeit fifty dollars to the aggrieved party. - The provisions of this section-shall only apply to railroads wholly within the' limits of any one incorporated city or village.” The law reads into all statutes and all contracts the element of good faith. (Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215, 225, 226.) It was conceded upon the argument that there is no controlling decision upon the exact question here presented.. We are, therefore, to determine by the application- of known rules, the proper construction of the statute, and -the limitations - which it imposes upon the defendant in the case now before us. The law-making power had in contemplation in-the passage of the act in question the practical efficiency of the means of transportation'. The design was to permit a passenger to proceed along the line of connecting surface railroads, so that he might reach his point of destination with the greatest practical ease and economy. ■ It ivas “ to the end that the public convenience may be promoted ” that this provision was inserted, and the public convenience requires of all street surface railroads, not only that they shall deliver each passenger at the termination of his journey, no matter how circuí- ' tous the route may be, but that such passenger shall be carried by the most direct and practical route to the nearest point to which he desires to go, regard • being had to his purpose and convenience.. Suppose, for instance, that we are at Union Square and desire to . •go to the Fifth Avenue Hotel opposite Madison Square. The . .Broadway cars will take ns directly past the hotel'by traveling a •f few blocks, and every consideration of public convenience is served by that line. But we could take a Fourth avenue car to Forty-second street,-thence by another car to Broadway, and down Broadway to the Fifth Avenue Hotel, thus making a circuitous route. If the plaintiffs construction of the statute is right, this supposititious ease could be complicated by a great variety of transfers. This does not embrace any element of. public convenience. It would be merely an indulgence of an individual, desire to ride, rather than a puiv "pose “ to make one continuous trip between such points.” -The trip, .whatever wé'mqy say of its continuity, would be not “ between such ■points/’ but would be outside of them. It would not be ,an evidence •of' good faith on tlm part of a passenger to’which a public corporation is entitled, and tins lias been held by the courts of this State. An individual may have the time to work out and indulge in these freakish trips, but the public has no interest in them, and that was the purpose of-the Legislature in giving the right to enforce a private remedy tp the end that, the “public convenience may be-promoted by the operation of the railroads embraced in such contract .substantially as a.single railroad with-a single .rate of\fare.’’, .The public convenience, not the indulgence of individual caprice, is to-be served, and this is tp be accomplished, or “ promoted ” (to Use the language-of the statute), “by the operation of the railroads * * , *. substantially á@ -a .single railroad with á single, rate oí fare.” What, is necessary,, then, to the operation of th.ese railroads substantially as a single raih’oad ? This question'has been judicially answered ip.principle in the case, of Bennett v. N. Y. C. & H. R. R. R. Co. (69 N. Y. 594). ' In that case the plaintiff.bought á ticket from- Lo.ekp.ort. to Troy. '■ Ho route was. indicated. . The railroad t operated t-w® lines between Rochester and-Syracuse; one of-them, a direct-line Over which it habitually operated its regular through .trains,-was 81 miles, long, and the other Was. 104 miles. • The plaintiff left the through train at Rochester and took a train over the . 'older and longer route by way of Auburn, ' Aftpr leaving Auburn the conductor,demanded an extra fare, and on the plaintiff refusing. to pay-more-he was ejected.from the car, and brought his action to recover damages. He was nonsuited upon the. trial, arid the judg. ment was affirmed by the General Term (5 Hun, 599) and by the Court -of Appeals. ■ In discussing -the contract of - the carrier the court: sayIt seems to rn.e that it was a contract to carry the plain- . tiff over the Usual, through and niost, direct route,, and. nothing'more. . The defendant is restricted-to á charge of two cents a mile. It' does, not appear that the plaintiff paid any more than that sum for the eighty-one miles over the usual route. The through train from Lockport passes, over the direct'route, and the plaintiff must have. changed cars at-Rochester and taken another train. He may have supposed that the ticket- entitled him t-o go; by any road which the defendant owned, .however, indirect, and. regardless of the distance traveled. In this I think lie was mistaken. ■ The ticket was a through ticket and impliedly oyer the through route. The company were not bound to take him over any and all their roads which might terminate at the. same point. A ticket from Albany- to Buffalo would not entitle the holder to go by the way of Niagara Falls, although the company owns the road all' the way round, and I do not see why the company would not be liable -to a;- penalty for charging by the way of the Falls for a ticket to Buffalo, unless on notice.” And, continuing: “ I am of opinion that it was a contract to carry the plaintiff over the direct road and not one to carry over an unusual and roundabout way, twenty-three miles farther.” Is there any difference in a. contract where a passenger buys a ticket between two named points, and a contract, growing out of the payment of a single fare upon a street surface-railroad pursuant. to statute ? Is not the contract implied, that the company will carry the passenger from the point where lie comes oh board to the .nearest • . practical point upon its lines, to the proposed destination of the passenger by the shortest and most direct route, and not by some fanciful, roundabout way ?. To our mind the inquiry carries its own. answer, A careful examination of the maps in evidence, in con- - nection with the scheme of transfers as it was developed upon the trial-,, shows that a passenger might by‘traveling in-the'same general direction, by means of cross-town., lines, reach within a few ■ blocks almost any point within the territory which the defendant attempts to cover, and for a single fare, and as this is all that a “ single railroad with a single rate of fare,” under the laws-of this State, is expected to do, -it. cannot be said that any purpose of section 104 of the Railroad Law. (as amd. supra) is being defeated by the rule which accomplishes the result mentioned. And it cannot be doubted that the, system of transfers now in force does operate to accomplish this purpose, or that this system is in harmony with the power to “ regulate the .time and manner in which passengers and. property shall be transported.” As was stated in Bennett v. N. Y. C. & H. R. R. R. Co. (5 Hun, 599): “ There was nothing unreasonable, therefore, in requiring him to pay more; for the reason that the defendants were rendering him more service than it was necessary for them to do in . order to fulfill .the contract .to carry him from Rochester to Troy.” In Wimmer v. Union Traction Company (12 Penn. Super. Ct. 467) the city had, in granting the franchise to the defendant, provided that “ the said railway company shall run ears over their entire line at intervals not exceeding five minutes,” and that “the rate of fare to be charged for a single continuous ride over the entire line shall not exceed the present fare,” etc. The line operated appears to have béen a loop. The plaintiff entered a car going west several blocks - distant from the turning point and paid his fare. He remained upon the car until it rounded the loop, going east, in the direction he desired to travel, and the second fare being demanded, he refused to pay and was ejected from the car, bringing an action . for damages. The plaintiff, took the. grounds^ asserted in substance by the plaintiff in the case at bar, that lie had the legal right, under the provisions-of the ordinance to enter the car at .the"terminus at Forty-first, and - Market streets, and remain therein until the car made its circuit and returned practically to its starting point. The court did not decide the precise point here under consideration,, but held that'the plaintiff was properly ejected,(and reversed the court below, which had held the.plaintiff’s view of the case. In Church v. Chicago, M. & St. P R. Co. (6 S. D. 235; 26 L. R. A. 616) the Supreme. Court, on appeal, held that it was a reasonable regulation for a company operating direct, indirect and circuitous lines of roads between two points to- require that through .passengers traveling Upon a simple contract to carry them from one point.to another should go by -the most direct route.. (See, also, 6 Oyc. 581; 28 Am. & Eng. Ency. of Law [2d ed.], 184.) This rule is so. in accord with proper ideals of-justice that it appeals at once to the judicial mind, and when we recollect the obligation of the individual to deal in good faith with those acting under the law, it becomes plain that the plaintiff -in this.action has no right to recover, ' for the defendant has not been, guilty of ...a statutory wrong against which the remedy was directed. -While the refusal of á transfer is the.overt act upon which the cause of action depends, it.is the violation of the duty to the -public which the law seeks to reach, and if -there is no violation of that duty then the defendant had a right .to refuse the transfer. : The duty of the corporation is to carry not beyond and back to. the point by a circuitous route, but “ between any- two points on the railroads or portions thereof embraced in such contract, any passenger desiring to make one continuous trip between such points,” not for the gratification or whim of the idle or curious' person, but “ to the' end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare:” The law contemplates that a passenger upon a street railroad, like a passenger upon any ordinary railroad, wants to go somewhere as a practical matter, that he has a purpose in going to some given place. The powers given to railroad- corporations and the duties which they assume are predicated upon transportation facilities as practical utilities, and when in section 104 of the Railroad Law (as amd. supra) it was provided that a passenger “ desiring to make one continuous' trip between such points,” should be permitted to do so for a single fare, it was understood that the passenger desired to make use of the means of transportation afforded, under reasonable rules and regulations, to accomplish this purpose in a practical way. • A trip is defined by the Century Dictionary, in its relation to transportation, to be the performance of service one way over a route, the performance of service both ways being a round trip,” and under the scheme of transfers provided for by the defendant, a person desiring to make a continuous trip — a.trip one way —is provided an entirely practical and efficient means of reaching any' part of the city of Sew York for a single fare of five- cents, and this is a full compliance with the purposes sought to be accomplished by section 104 of the Railroad Law (as amd. supra). The defendant, while fulfilling its duty under the statute, cannot be guilty of such a refusal of a transfer as to entail the penalty prescribed. . The determination appealed from should be reversed, and the judgment of the trial court affirmed, with costs in all courts. Patterson, P. J., and Houghton, J., concurred; McLaughlin and Scott, J.L, dissented. , . [DISSENT — McLaughlin, J.] McLaughlin, J. (dissenting): This action was brought in the Municipal Court of the city of. New York to recover a penalty of fifty dollars for defendant's refusal to give a transfer provided -for in section 104 of the Railroad Law (Laws of .1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 676). The defendant had a judgment dismissing the complaint, with costs, from which an appeal was taken to the Appellate Term, where the same was reversed and judgment directed for the plaintiff, and.from such determination the defendant appeals to- this court. .There is no dispute as to the material facts involved, the question presented being one of law. The plaintiff boarded one of defendant’s south-bound cars at Third avenue and Bayard street, for the purpose of - going to West Broadway and Leonard street. Both these points are between defendant’s cross-town lines on Canal and Chambers streets. The plaintiff was given a transfer for and which he used on the Chambers street' line,-but when he transferred at Chambers street and West Broadway to a north-bound car on the latter street (which it was necessary for him to take in traveling on defendant’s car to resell the point to which he desired to- go) he was compelled to pay another fare, the conductor refusing to recognize or accept the transfer which had previously been given to him. If the conductor were justified in refusing to accept such transfer, then the determination appealed from is erroneous and must be reversed, otherwise it must be affirmed. The solution of the question turns upon the construction to be put upon section 104 of the Railroad Law above referred to. This section provides that: “ Every such corporation entering into such contract shall cany or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by. . either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to - each passenger paying one single fare a transfer, entitling such ■passenger to one continuous trip to any point or portion of any - railroad embraced in .such contract, to -the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with, a single rate of fare. * * The rule to be applied in construing a statute is that the words used must be given their ordinary and natural meaning)'that is, the. meaning in which they are generally understood and.if, after applying such rule, there is conveyed a definite meaning which does not involve an absurdity or contradiction, then the court has no right to add to or take from that meaning by arbitrary rules of construction, or by the elimination of words used - or the insertion of those not used. (Tompkins v. Hunter, 149 N. Y. 117.) This rule- has for its foundation the fact that it is always competent for the Legislature, within the limits of the Constitution, to enact a statute, and when the same is brought under judicial review, it is safer for the judicial department of the government to follow the plain intent and obvious meaning of an act rather than to speculate what might have been the view of the Legislature in the emergency which may have arisen (People v. Woodruff, 32 N. Y. 355), and that the court has no right to disregard the plain words of a statute even in favor of what may be an equitable construction in order to extend it to some supposed policy not included in the act. (Karst v. Gane, 136 N. Y. 316.) Applying this rule to the statute under consideration, I am of the opinion that the determination of the Appellate Term is correct and should be affirmed. The legislative intent is apparent and unmistakable and it is the duty of the court to give effect to it. It is " that each passenger paying a single fare shall, upon demand, be given a transfer entitling him to one continuous trip to any point on defendant’s lines. There is not a word used which indicates-that the trip for which a transfer is to be given shall be substantially in one direction or that it shall not be partly in one and partly in an opposite direction. The object sought to be accomplished is the convenience of the public. The statute so declares and it does not require argument to demonstrate that this convenience may be promoted just as effectively by transfers which may be used on a trip partly in a reverse direction as it would entirely in one direction. A large portion of the population in the city of New York-resides on either side of Central Park, which extends from Fifty-ninth to One Hundred and Tenth streets, and the only car-line which the-defendant has running through such park is at Eighty-sixth -street, so that-there is no way by which persons residing on either side-of such park-can get to the other side, if they live north or -south of Eighty-sixth street, traveling by defendant’s railway, except by going partly in.one. direction and then partly in a reverse direction. Thus, if A lives at Seventy-ninth street and Broadway and desires to go to Seventy-ninth street.and :M'adison avenue he must take a-car and go south, then transfer east and go north, or else take a car and go north, transfer- east and. go south, and tosay that he is not entitled to such transfer is to nullify the statute by destroying the . very object sought to be accomplished by it. . It may be that requiring such transfers to be-given would entail additional expense upon the defendant, but this is no reason why the statute should not be enforced, and; it may also be possible that it would be difficult to formulate a system dr promulgate rules which would prevent the defendant being imposed upon, but if so this is no reason why the court should not give effect to the statute. If its enforcement will produce the results claimed by the defendant then it. should be changed, but such change should be made by the Legislature; and not by the court. .We have recently held (Nicholson v. New York City R. Co., No. 4, 118 App. Div. 858) that tobe entitled to a transfer. the passenger must, in good faith, desire to make one continuous trip - between two points on defendant’s line. There is nothing in this ■ record,to show, nor is it even suggested, but what the plaintiff, at the time the transfer was refused, demanded the same in good faith for .the purpose of going tó the place specified. There was, there- . fore, no excuse'ón the part of 'the defendant, acting" through its conductor, for refusing to give the transfer demanded, and this being so if the foregoing conclusions be correct as to the construction of the statute, the plaintiff became entitled to the penalty sued for. ■' ;- Much stress is laid by defendant’s counsel upon Cronin v. Highland Street R. Co. (144 Mass. 249) as supporting their con-, tention,: This case was. decided in 1887 under an amendment to the statute which went into effect in 1878. (Pub. Stat. chap. 113, §-47.) Prior to the amendment the statute provided, in substance,- that a passenger on one line, paying his fare and receiving a commutation ticket; should be permitted to travel to any point on a connecting line without- paying extra fare. The amendment referred to, however, provided that for a single fare a passenger was not entitled “ to a passage, over the same route on which the' check was issued, or a route parallel thereto and between and including two common points.’’ Obviously, under the amendment, a passenger would not tie'entitled to a transfer entitling him to travel in a reverse direction. This was the purpose of the amendment, and it was under the statute as amended that the decision relied upon was made. If section 104 of our own statute (as amd'. supra) contained a similar provision, then the defendant might well contend that a passenger could not rightfully claim a transfer entitling him to travel in a reverse direction, but so long as the statute remains in its present form I am unable to see for the reasons already given, why a passenger, desiring .in good faith to make one continuous trip between two points on defendant’s line, is' not entitled to a transfer between tliose points, even though it involves traveling in a reverse direction. ■ I am unable, therefore, to concur in the prevailing opinion and vote to affirm the determination of the Appellate Term. Scott, J., concurred. Determination reversed and judgment of Trial Term affirmed, with costs in all courts.