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This action was brought, as above stated, to recover the penalty of fifty dollars which the statute (section 59, Railroad Law) imposes upon a railroad corporation for asking or receiving more than the lawful rate of fare, unless such overcharge was made
through inadvertence or mistake not amounting to gross negligence. The facts are not in dispute. The rate of fare established by the defendant between its stations at Nostrand avenue and Jamaica in Brooklyn is twenty cents. The fare which the statute authorizes it to charge between these stations is twenty-seven cents. The amount actually collected from the plaintiff was thirty cents. As there is no claim that this was due to inadvertence or mistake on the part of defendant's conductor, it follows that the defendant did ask and receive from the plaintiff "more than the lawful rate of fare," unless the overcharge can be justified by the statute upon which the defendant relies. That statute (L. 1889, ch. 38) gives to railroad corporations, owning or operating steam railroads within this state, 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 except where the passage "is wholly within the limits of any incorporated city in this state," and the right to make this overcharge is subject to two conditions. The first is that the railroad company shall give to the passenger a receipt or evidence of payment stating that it entitled the holder to a refund of the excess charge at any of the company's ticket offices; and the second is that the right to make the overcharge exists only as to a passenger from a station at which tickets can be purchased during the half hour immediately preceding the departure of the train on which the passage is taken. It is conceded that both of these conditions had been complied with by the defendant, and the question arises, therefore, whether the defendant is to be subjected to the penalty provided for in section 59 of the Railroad Law, or whether it was authorized by chapter 38 of the Laws of 1889 to make the excess charge of ten cents above the regular or established fare.
The Municipal Court decided that this is an action for a penalty under section 59 of the Railroad Law and
upon that point there can be no disagreement. That court went further, however, and held that the defendant, in assuming to exact from the plaintiff an excess charge of ten cents under chapter 38 of the Laws of 1889, could in no event be held liable under the penal statute because the money thus taken was not excessive fare but only an additional charge which it agreed to refund upon demand. Personally I am inclined to this view. The penal statute, as originally enacted in 1857, was entitled "An act to prevent extortion by railroad companies," and its context, which has not been materially changed since then, indicates that its purpose was precisely what its title plainly expressed. It was an act for the benefit of the individual passenger and against the railroad companies, and it imposed the prescribed penalty only for exacting and receiving excessive fare. The statute of 1889, on the other hand, was enacted obviously for the benefit of the railroad companies and the traveling public, for it penalizes the individual passenger to the extent of an additional but refundable charge whenever he fails to provide himself with a ticket at a station where he has the opportunity to get one. (Monnier v. N.Y.C. H.R.R.R. Co., 175 N.Y. 281,290.) When the defendant, therefore, assumed to exact and receive an excess charge for the plaintiff's failure to provide himself with a ticket, and gave him a token by which it agreed to refund the excess charge on demand, it did not violate the penal statute (§ 59) or incur its penalty. My associates do not concur in that view, however, and I pass to the consideration of a question upon which we are all agreed.
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 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. (204 N.Y. 440, 447) the plaintiff sued for a penalty given by certain sections of the Railroad Law which imposed upon street surface railroad companies the obligation to carry passengers for a single fare upon railroads "wholly within the limits of any one incorporated city or village." There the lines of railroad extended through several municipalities under conditions which entitled the consolidated railroad companies to charge more than a single fare, and the question was whether they had lost that right by the consolidation of the municipalities into one city. Chief Judge CULLEN wrote for the court in the Braffett case, and we can do no better than to quote his argument here. "Did such consolidation in the creation of the new municipality impose upon the defendant obligations and requirements from which before consolidation it was free? We think not. In the case of what might be regarded as the natural extension of an existing city or village caused by the
overflow of increasing population into adjacent territory, it may be that the obligations of a railroad company would increase with the increase of the municipality. The creation of the present city of New York was not at all an extension of that character. By it were combined the old city of New York with a population of 1,800,000, the city of Brooklyn, with a population of 1,000,000, and the outlying districts of Queens and Richmond, with a population of 150,000 more. The area of the county of New York is 39 miles, that of Kings 72, of Richmond 59, and of the annexed portion of Queens 58. Thus the area of the new city is over five times that of the old city of New York and over three times that of the old city of Brooklyn. Though consolidated into a single municipal corporation the autonomy of the several constituent municipalities is maintained in some degree by the creation of boroughs to which certain local administration is confided. The charter of the new city (Section 1538) enacted that the franchises theretofore granted by any of the united and consolidated municipalities should be restricted to their respective limits before the consolidation. It would seem fair that if the privileges were not extended by consolidation neither should the obligations be. It is hardly to be supposed that either the legislature in the enactment of this section of the Railroad Law, or the defendant in the acquisition of the two roads under the provisions of that law, had in contemplation such a vast and radical change in existing conditions as was caused by the creation of the new city. It may be said that the difference between the case of what we have termed the natural expansion of the city and that of the creation of the consolidated city is one merely of degree. This is true, but many questions are merely of that character." This argument fully covers the case at bar, and answers, we think, the suggestions contained in the brief of counsel for the public service commission.
There is no distinction in principle between the case of 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.