100 N.E. 47 | NY | 1912
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This action was brought, as above stated, to recover the penalty of fifty dollars which the statute (section
The Municipal Court decided that this is an action for a penalty under section
Under chapter 38 of the Laws of 1889, any railroad owning or operating a steam railroad within the state is given the right "to demand and collect an excess charge of ten cents over the regular or established rate of fare, from any passenger who pays fare in the car in which he or she may have taken passage,except where such passage is wholly within the limits of anyincorporated city *446 in this State." As bearing upon the question whether this exception in the statute applies to the case at bar, it is conceded that in 1889 Jamaica was outside of the limits of Brooklyn, which was then an independent city, and that in 1909, when the transaction in suit occurred, both Brooklyn and Jamaica were constituent parts of the greater City of New York, created in 1897 by the consolidation of the cities of New York, Brooklyn, Long Island City, the county of Richmond and the larger part of the county of Queens. From 1889 until 1897 the defendant clearly had the right to make the excess charge provided for in chapter 38 of the Laws of 1889 in any case where a passenger, taking passage from Nostrand avenue in Brooklyn to Jamaica, paid his fare in cash at a time when he could have procured a ticket; and the real question in the case is whether it lost that right by the consolidation of these cities and counties in 1897. That question we regard as settled by authority. In the recent case ofBraffett v. Brooklyn, Q.C. S.R.R. Co. (
There is no distinction in principle between the case of *448 Braffett and the case at bar. There the railroad extended through separate municipalities until they were taken into the city of New York by the consolidation of 1897. Before the consolidation the defendant in that case and its predecessors clearly had the right to charge more than a single fare for a passage over territory which was later wholly within a single incorporated city, and it was held that the consolidation did not affect that right. Here the stretch of railroad over which the plaintiff took passage also originally extended through separate municipalities which, by the consolidation of 1897, were brought wholly within the limits of an incorporated city. Before the consolidation the defendant had the conceded right to collect the excess charge of ten cents from a cash passenger under the circumstances which characterized the transaction with the plaintiff. Under the decision in the Braffett case that right remains unaffected by the creation of the greater city.
The order of the Appellate Division should be reversed and the judgment of the Municipal Court affirmed, with costs to the appellant in all courts.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, CHASE and COLLIN, JJ., concur.
Order reversed, etc.