17 N.Y.S. 471 | The Superior Court of the City of New York and Buffalo | 1892
The New York, New Haven & Hartford Bailroad Company was incorporated under the laws of Connecticut. The road was extended into this state by permission given by an act of the legislature. Laws 1846, c. 195. By section 4 of that act it was provided that the charge for the transportation of passengers should not exceed three cents per mile within this state. By an act passed in 1866, as amended in 1869, the Harlem River & Port Chester Bailroad Company was incorporated for the construction of a railroad from the Harlem river to New Bochelle, in the state of New York. That road was built, and runs along on the east side of the New York, New Haven & Hartford Boad, and several years ago was leased to the New York, New Haven & Hartford Bailroad Company, and has been used and operated by that company ever since. Between the Harlem river and New Bochelle is a station called “ Van Nest,” and about half a mile off from that station is the Morris Park race-course; and when the races were had large numbers of people went there,—more than could be carried on the regular
The title and right of way must be acquired, and a survey and map of the route and line of a railroad incorporated under the general railroad act must always be made and filed. If these preliminaries are not complied with, or these proceedings are not had, it is not a railroad constructed under that act; and, if it is not a railroad constructed under that act, subdivision 9, § 28, of that act does not fix the rate of fare; for that section, by its express terms, fixes the rate of fare only on railroads constructed under that act. If, then, as appears to be the case, this spur or branch road from Van Best station to the race-course was not constructed under the general railroad act, and is not a part of the Harlem Biver & Port Chester Bailroad, but an independent or temporary structure, which may be used or not, at the option of its builders,
The private spur or branch was used at the will of the defendant, as a private enterprise, and only on occasions when it thought proper, and it is not subject to any of the acts regulating authorized railways, that are available to the plaintiff. Every passenger is given the option of traveling on the road at the legal rate, or purchasing, for a consideration, additional facilities or conveniences in addition to the ordinary transportation. The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case. The transportation of passengers over a half mile of private track off the line of the defendant’s railroad is therefore as foreign to the ordinary transportation business of the company as the furnishing of meals or seats in the grand-stand, or the carrying in elevators or carriages. The land on which the six tracks were built might have been converted into a private road in which,to carry passengers from Van Nest station to the race-course. The defendant preferred the more convenient arrangement of building a spur track. To do this, it is claimed, needed no statutory authority. The defendant owned the land as a private individual might own it, and it is urged that it requires no special statutory authority for a private individual to build upon his own land railroad tracks, and run cars thereon for the convenience of his guests Or patrons; that there is nothing contrary to public policy in his doing so. We do not feel called upon to'decide this proposition in the present case, but, if it be argued, such a railroad needs no franchise or power from the state; the owner may operate it to suit himself, and he will not be subject to the regulations and restrictions contained in the general railroad act. The defendant could have leased or sold this land to the owner of Morris Park, and he probably might have run the cars on the tracks without organizing a railroad company, or being forced to ask for and receive any power or aid from the state. He certainly would not have been subject to the provisions of the general railroad act, and it is urged with force that the defendant is not in a worse position. It is entirely clear that this outside track was never intended to be a railroad under the statute conferring corporate rights, or imposing corporate obligations or liabilities, but was intended to be ana is a temporary structure, to be occasionally used for the convenience of persons deiring to go to a place off from the railroad, and to be discontinued or abandoned at any time, at the pleasure of the builders. If that branch or strip of road is not a part of the Harlem & Port Chester Eailroad, or was not constructed under or in pursuance of the general railroad act, and the charge in excess of three cents a mile was for transportation over that strip or branch road, the plaintiff is not entitled to recover that excess nor the penalty. Penal statutes must be strictly construed, and to recover a penalty a plaintiff must always make a plain case, and bring his claim within the very letter of the statute.
The court in this case has found that the sum over three cents per mile was for or because of transportation over that outside track, and the evidence warrants that conclusion. All the company charges for any distance on the line of the railroad is three cents per mile or less, and passengers on the road stopping at Van Nest station are required to pay but three cents per mile; but when, as in this case, a passenger asks to be carried from the station to a place off from the line of the road, and where the company is not obliged to take him, there does not appear to be any law forbidding the company charging an extra compensation. The court has found that the facts do not show any violation of the provision of section 4, c. 195, Laws 1846. That is true, for the reason, among others, that that law has no application to this case. It is not for carrying the plaintiff over that road, or any railroad incorporated under that act, that the plaintiff paid the fare in question in this case. The road in question is the Harlem Biver & Port Chester Railroad, incorporated under another and a different act, and which the defendant is ■running as lessee.
The court also finds that the proof does not show any violation of subdivision 9 of section 28 of the general railroad act, (chapter 140, Laws 1850,) and this presents the whole question. If the views before expressed are correct, that the branch road from Van Nest station to the race-track is not a railroad constructed under the general railroad act, then this finding is correct, and the plaintiff, to recover, was bound to show that it was, or, at least, that •it was constructed under some act of the legislature limiting the rate of fare to be charged to passengers carried over it to less than the sum charged in this case, which he has failed to do. All presumptions must be in support of a judgment, and, if the statutes and the evidence in this case will bear a construction that will sustain the judgment, that construction must be given them. If the defendant was not limited by the statute in its charges for transporting persons over that branch track, then it must be presumed that the excess over 3 cents per mile (the 14 cents) was charged and received for that extra service. Besides, as the case does not show that it contains all the evidence, if there is any lacking, or not printed in the case, necessary to support the findings, (although there does not appear to be,) the •court must presume it was given. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446; Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022. Where there is an exception to a finding of fact on the ground that there is no evidence whatever to sustain the finding, it is not necessary, in order to raise that legal question, that the case contains all the evidence. Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. Rep. 482. But that is not this case. The plaintiff in this case, if he claimed or wanted a finding that the spur or track from Van Nest station to the race-course was a part of the Harlem Biver & Port Chester Railroad, should have requested such a finding. Patterson v. Robinson, 116 N. Y. 198, 199, 22 N. E. Rep. 372. He did not do so, nor did he, as it looks to us, request any findings. 1-Ie drew up a draft of a decision, which, however, the judge treated as requests to find, but did not adopt. The court has not found, nor has it been proved, that there is •any such station as Mount Morris Park on the line of the Harlem Kiver & Port Chester Railroad, nor that the distance that the plaintiff was carried on that railroad was less than six miles, nor that the entire charge of 50 cents was for travel on that railroad; but does find that the charge was for transportation from 134th street to Morris Park and return. All the findings of fact •that the judge did make are supported by evidence, and the second legal question, on which the whole case rests, is supported by the evidence on the part
1 Laws 1886, c. 415.