65 A.D. 587 | N.Y. App. Div. | 1901
The plaintiff complains and the defendant admits that the defendant was on J une Y, 1899, and still is a domestic railroad corporation. Beyond this, there is nothing in the record touching the corporate status of the defendant. Purdy v. Erie R. R. Co. (162 N. Y. 42) holds that the so-called Mileage Book Act (Laws of 1895, chap. 102Y) is constitutional so far as it relates to railroad corporations thereafter incorporated in this State, and that the amendment of that statute by chapter 835 of the Laws. of 1896 is constitutional in all cases where the original act could be sustained. As there was no contention that the corporation was not within the purview of the statute raised by the pleadings, and as the record is silent, we must assume that the statute applies.
The statute (as amd. by chap. 5YY, Laws of 1898), provides that the corporation “ shall issue mileage books having either five hundred or one thousand coupons attached thereto, entitling the holder thereof * * * to travel either five hundred or one thousand miles on the line or lines of such railroad, for which the corporation may charge a sum not to exceed two cents per mile. * * * Such books shall be issued immediately upon application therefor. Upon presentation of such mileage book to a conductor on any train on any line of railroad owned or operated by said railroad corporation, the holder thereof or any member of his family * * * shall be entitled to travel for a number of miles equal to the number of coupons detached by such conductor. Such mileage book shall entitle the holder thereof to the same rights and privileges in respect to the transportation of person and property to which the highest class ticket issued by such corporation would entitle him. Such mileage books shall be good until all coupons attached thereto have been used.” The plaintiff, who was a traveler on a regular passenger train of the defendant, which stopped at Narrows-burg, New York State, tendered to the conductor thereof a mileage book with sufficient coupons undetached in payment of his fare therefrom to Oochecton, N. Y., a regular station at which that train stopped, and which was distant nine miles from Narrowsburg. The territory between such stations was wholly within the State of New York. The conductor refused to accept such mileage book in payment of such fare, and upon the refusal of the plaintiff to pay his
The mileage book, when issued, contained certain rules and regulations, as follows : “ This five hundred mile book is sold by Erie Railroad Company and purchased and used under and in accordance with the following rules and regulations, viz: 1. * * * 2. It will be accepted for transportation only for journeys wholly within the state of New York and will not be accepted for a journey which j>asses through any portion of another state en route. The undersigned purchases and accepts this book subject to the above rules and regulations which he or she has read and fully understands and hereby agrees to abide by in all respects.” The plaintiff admitted that he subscribed this book when he purchased it. In effect, then, the defendant relies upon a contract which was required of the plaintiff when, under the authority of the statute, he applied for the mileage book. But I can find nothing in the statute which authorized the defendant to prescribe such a contract with the plaintiff or to require the plaintiff to subscribe the same as a condition for its issue. (Trolan v. N. Y. Central & H. R. R. R. Co., 31 App. Div. 320,323.) The statute but provides that such hooks must he issued upon- application, that the charges shall be two cents a mile, and that the holder shall be entitled to travel for a number of miles equal to the number of coupons undetached with the same rights and privileges in respect to transportation of person and property as the highest class ticket would entitle him. Thus the defendant by its contract would limit the statutory duty cast upon it. Not only in my opinion is such a contract in contravention of the statute, but if there be any room for the discussion I can find no sound reason for this regulation in this" case beyond the desire to avoid the statute. Conceding,
The judgment must be reversed and a new trial ordered, with costs to abide the event.
Goodrich, P. J., Bartlett, Woodward and Hirsohberg, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.