112 N.Y.S. 589 | N.Y. App. Div. | 1908
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
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.
