Henry A. King, Respondent, v. The Nassau Electric Railroad Company, Appellant

Henry A. King, Respondent, v. The Nassau Electric Railroad Company, Appellant. Second Department, October 16, 1908. Railroad — intersecting surface lines owned by same corporation — refusal of transfer — When action for penalty does not lie. Where two lines own,ed by a surface railroad run on separate-streets which intersect, and-neither line is operated under a lease or other contract, a passenger who has received a transfer on one line but is refused passage on-the intersecting line and compelled to pay another fare, canno.t recover a penalty under-section 101 or section 104 of the Railroad Law. As such railroad owning both intersecting lines could legally require another fare for passage on the second line, it did not, by demanding the same, ask or receive more than the legal fare although it had issued a transfer, and hence is . not subject to an action for the penalty prescribed by section 89 of the Railroad Law. Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 31st day of March, 1908. A. M. Williams, for the appellant. Fullerton Wells, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The plaintiff became a passenger on one of the defendant’s street surface cars, and upon- request was given a transfer ticket. He was carried to a point where another line of the defendant intersected. The two lines ran along separate streets and in different directions. He entered a car of the second line, and when' he offered the said transfer ticket for his fare it was refused, and he was compelled to pay a 5-cent fare. He has recovered $50 as a penalty and 5 cents excess fare. It appears that the said lines .were owned by the defendant, and that neither was operated under a lease. The judgment cannot' be upheld under section 101 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1897, chap. 688), for the plaintiff was not seeking a continuous ride or a continuous passage under section 101 of the Railroad Law, nor did he show that the defendant was within -the purview of section 104 thereof (as renumbered from § 105, and amd. by Laws of 1892, chap. 676). (O' Connor v. Brooklyn Heights R. R. Co., 123 App. Div. 784.) It is quite true that the defendant issued a transfer which purported to be valid on the second line, but it does not appear from the record, but the contrary, that it was required legally to do so. If it was not thus required, but could require legally the payment of a 5-eent fare on the second line, then it neither asked nor received more than the lawful rate of fare for the passage upon its second line, and hence it is not subject to an action for the penalty prescribed by section 39 of the Railroad Law. Its liability, if any, for its voluntary issue of a transfer which it represented as valid upon the second line, its subsequent refusal to accept it upon that line, and its exaction of a fare, present a question not involved in this action. The judgment is reversed and a new trial ordered, costs to abide the event.. Woodward, Hooker, Gaynor and Rich, JJ., concurred. Judgment of the-Municipal Court reversed and new trial ordered, costs to abide the event.