106 N.Y.S. 53 | N.Y. Sup. Ct. | 1907
This action is brought to recover a penalty of $100 under section 103 of the Transportation Corporations Law (Laws of 1890, chap. 566), which provides, concerning telephone and telegraph companies, that: “ Every such corporation shall receive dispatches from and for other telegraph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or
There is little or no dispute as to what I consider the material facts involved. The plaintiff attempted to telephone over defendant’s lines from a pay station, where the charge or toll was to be deposited in a box beside the instrument. A person wishing to telephone called the central office and gave the name of the party with whom he wished to communicate. When the desired party was obtained the operator at the central office notified the person and directed him to deposit the proper charge in the box beside the instrument and, upon being apprised that this had been done by a system of bells denoting the various coins deposited, connected the wires. The plaintiff, at the time in question, for the purpose of talking with some one 'at Gloversville, went to the store of Orlando Gifford at- Cranberry Creek,- in the county of Fulton, where the defendant had installed one of its-pay stations in connection with its telephone system; he took the receiver off the hook and called the defendant’s central office, and communicated to the operator there in charge the name of the party with whom he desired to talk; he then hung up the receiver and deposited fifteen cents•—the proper charge—-in the box intended for its reception and the operator, not being able to hear the coins register, refused to connect 'him with the party with' whom he desired to speak until he had paid the charge with the receiver off the hook, which was the established rule and was the only way in which the operator could know that the charge had been paid; the plaintiff refused to make a further deposit, insisting that he had a right to talk — having once deposited his money in the box — and, the operator refusing to permit him to do so, he immediately brought this action to recover the penalty specified in the statute.
The statute is a penal one and is to be strictly construed. Thompson v. Western Union Telegraph Co., 40 Misc. Rep. 443; Wichelman v. Western Union Telegraph Company, 30 id. 450. Whatever may he the plaintiff’s rights, he cannot recover under the statute in question, for his case does not come within its provisions. It is true the plaintiff testified that, on a former occasion, when using the same instru
The complaint, therefore, must be dismissed.
Complaint dismissed.