89 N.Y.S. 298 | N.Y. App. Div. | 1904
Lead Opinion
This appeal comes before this court upon the allowance of án appeal by the justices of the Appellate Term. Mr. Justice Freedman, in a learned and exhaustive opinion (Topham v. Interurban Street R. Co., 42 Misc. Rep. 503), has traced the history of the statutory law of the State bearing upon the authority conferred by the Legislature upon a street surface railroad company to construct, operate and lease street surfacé railroads and to enter into traffic contracts from the inception of the right down to the present time* and reached the conclusion that the lease entered into between the defendant and the Metropolitan Street Railway Company was made and executed pursuant to the provisions of the Railroad Law as it now exists, and that section 104 of that act is not limited to traffic contracts alone, but embraces contracts of lease as well. With that conclusion we agree. The same question was . considered by this court and the same conclusion reached in Mendoza v. Metropolitan St. R. Co. (48 App. Div. 62; S. C. on motion for reargument, 51 id. 430). It was also adverted to by the Appellate Division in the second department, and the same result asserted, in Barnett v. Brooklyn Heights R. R. Co. (53 App. Div. 432). Since that decision, we have been furnished with a manuscript copy of the opinion delivered by the same court in O'Reilly v. Brooklyn
We are also of the opinion that section 104 of the statute in question authorizes the recovery of cumulative penalties in one action. The language upon such subject is, “ for every refusal.” Similar language in the Revised Statutes (1 R. S. 586, § 44) was held in Suydam v. Smith (52 N. Y. 383) to permit the recovery of cumulative penalties, and that case distinguishes Fisher v. N. Y. C. & H. R. R. R. Co. (46 id. 644). The same distinction is maintained in all the subsequent decisions upon the subject. The second department, in Suffolk County v. Shaw (21 App. Div. 146), adopted the same construction, holding that similar language in section 190 of the Public Health Law (Laws of 1893, chap. 661) was equivalent to “ each offense.”
Cox v. Paul (175 N. Y. 328) is not in conflict with this conclusion. The language of the statute in that case was: “ For any refusal * * * such corporation and the officer or agent so refusing shall each forfeit.” (Stock Corp. Law [Laws of 1892, chap. 688], § 53, as amd. by Laws of 1897, chap. 384.) The court held that from the language of the statute but one penalty could be recovered, and that the word “ any ” was not the equivalent of “ each ” or “ every.” The language in the present case is different and this is ground for the difference in conclusion.
As 1 view this ease, however, this determination of these questions in favor of the plaintiff does not suffice to show that he is necessarily entitled to a recovery in this action;' nor does it result in the affirmance of the order from which the appeal is taken. The real question which the case presents 'turns upon the construction to be given to section 104 of the Railroad Law. (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892,
“ §104. Contracting corporations to carry for one fare; penalty.— Every such corporation entering into'such contract shall carry or permit' any other party thereto to" carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare¿ not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public, convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. Eor every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party. The provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village.”
The primary purpose of this section is to compel the railroad corporation to carry over the lines Of road operated by it passengers by such method as will best promote the convenience of the public who travel thereon. The learned court below assumed that the section was to be construed as mandatory provisions, requiring that a trans-" fer should be given at every intersecting point, and in disposition of
I am of opinion, therefore, that the true construction of section 104 of the Railroad Law vests somewhat of authority in the defendant to fix transfer points where the convenience of the greatest number of the traveling public will be subserved in going to and from their respective points of destination, and if this result was obtained by the transfer points which were established at the time when this action was brought, no right of action existed, even though such right was denied at the particular point. When the defendant has made provision for the issuance of transfers at intersecting points where the public convenience will be promoted, it
This construction of the statute, however, does not avail the defendant in the present case, as it has pleaded no such defense in its answer, nor has it proved the same upon the trial. There is not a suggestion in the answer that the defendant has at any time fixed transfer points which will promote the convenience of the traveling public. The nearest approach to it is in paragraph 10, where it is averred that at the time in question there were other lines of railway which the plaintiff might have taken to reach his point of destination as easily and equally as well as to use the lines mentioned and described in the complaint. There is, however, no averment that these lines of road were under the control of or being operated by the defendant, and while such fact can doubtless be determined by a reference to the lease which is a part of plaintiff’s proof, yet there is no averment that it issued transfers at intersecting points upon such line, or that it issued a transfer at its intersection with Eighteenth street, which would have carried the plaintiff to his destination. An examination of the testimony also fails to show that the defendant has made any compliance whatever with the provisions of section 104 of the Railroad Law, or that the plaintiff could have reached his destination by a single fare over any line operated by the defendant. The witness called to establish the fact of the issuance of the transfers failed in his recollection upon such subject and could not testify that retransfers were issued, nor does it appear that such question has been presented in such form as to be available to the defendant in any of the cases now pending before this court.
Since the foregoing was written, Mr. Justice Ingraham has considered the whole subject in an opinion handed down herewith. I concur in his opinion so far as it affects the leases made prior to May 1, 1891, for the reasons assigned by him. The provisions of section 78 of the Railroad Law (as amd. by Laws of 1893, chap. 433)
My conclusion, therefore, is that the determination of the Appellate Term in this case should be reversed, and the judgment of the Municipal Court affirmed, with costs.
Laughlin, J., concurred ; Van Brunt, P. J., concurred in result; O’Brien, J., dissented.
Concurrence Opinion
I do not agree in the construction given by the learned court from which this appeal is taken to section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap. 676). I do not understand that our decision in the casé of Mendoza v. Metropolitan St. R. Co. (48 App. Div, 62; upon reargument, 51 id. 430) determines the question now before us. In that case, which came up on demurrer, we held that the defendant was not liable for the penalty there sued for.
I view the question presented on this appeal as an open one in this court.
This action is based upon refusals of the defendant to give to the plaintiff transfers which would entitle him to one continuous trip from a point on Twenty-third street to a point on Broadway, upon the line of the Broadway and Seventh Avenue Eailroad Company, and from a point on the Broadway and Seventh Avenue line to a point on the Twenty-third Street line. The line of the Twenty-third Street railroad intersects the Broadway and Seventh Avenue line at the corner, of Twenty-third street and Broadway. For a first cause, of action the plaintiff alleged that he boarded one of the defendant’s cars at a point on Twenty-third street east of Broadway, paid his fare, and at the same time demanded from the conductor a transfer to be used over the Broadway and Seventh Avenue line from the intersection of the said line at Broadway and Twenty-third street south to his destination, which was refused arid the plaintiff demands a judgment for the penalty prescribed by .section 104 of the Railroad Law (supra). There were several other causes
Section 104 of the Railroad Law is contained in article 4 of that act relating to street surface railroads. That article, as amended, provides for the construction of street surface railroads and specifies the conditions under which such corporations may be authorized to construct a railroad upon and along any street, avenue, road or highway in any city, town or village of the State. The article contains no provision authorizing railroad corporations to make contracts with each other, but section 104 provides as follows: “ Every such corporation entering into such contract shall carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare,” and a penalty, is provided for a refusal to comply with this provision.
By section 78 of the Railroad Law (as amd. by Laws of 1893, chap. 433) authority is given for any railroad corporation, or any corporation owning or operating any railroad or railroad route within this State, to contract with any other such corporation for the use of their respective roads or routes, or any part thereof, but that section contains a provision that “ nothing in this section shall apply to any lease in existence prior to May first, eighteen hundred and ninety-one.” Article 3 of the statute of which section 78 is a part
The Railroad Law was originally enacted as chapter 565 of the Laws of 1890. Sections 103, 104 and 105 of that law were taken from sections 1, 2, 3 and 4 of chapter 305 of the Laws of 1885. It was amended by chapter 676 of the Laws of 1892, when sections 103 and 104, which were sections 1, 2 and 3 of the act of 1885, were repealed, and section 4 of the act of 1885, re-enacted as section 105 of the Railroad Law of 1890, was inserted in the Railroad Law of 1892 as section 104:
By the Railroad Law of 1890 the provision of section 105, “ Every such corporation entering into such contract,” applied to a contract authorized by section 103 of the act; but as section 103 was repealed by the amendment of 1892, section 105 of the act of 1890, which was made section 104 by the amendment of 1892, can only apply,'as I understand it, to a contract made under section 78, which by express terms does not apply to a lease made prior to May 1, 1891. Chapter 305 of the Laws of 1885 was repealed by section 34 of chapter 687 of the Laws of 1892. If section 104 of the Railroad Law does not apply, the Municipal Court was correct in awarding judgment for the defendant.
It seems to me that the refusal of the defendant to give to the plaintiff a transfer to ride from the point on the Twenty-third Street railroad line to a point on the Broadway and Seventh Avenue railroad line, or a transfer to ride from a point On the Broadway and Seventh Avenue railroad to a point on the Twenty-third Street' line, was not a violation of section 104 of the Railroad Law, as amended in 1892. The Broadway and Seventh Avenue Railroad Company was incorporated under the General Railroad Law of 1850 (Chap. 140, as amd.), and by an indenture of lease dated the 13th day of May, 1890, it leased all its railroads, including its leased lines, to the Houston, West Street and Pavonia Ferry Railroad Company. The Twenty-thii;d Street Railway Company was organized under the General Railroad Law of 1850, as amended, and bv an indenture of lease dated April 25,1893, it leased to the Houston, West Street and Pavonia Ferry Railroad Company all its railroads, including leased lines, together with all the franchises, rights, powers
This being the situation, the lease from the Twenty-third Street Railway Company to the Houston, West Street and Pavonia Ferry Railroad Company was executed and delivered. That lease, dated April 25, 1893, is between the Twenty-third Street Railway Company, party of the first part, and the Houston, West Street and Pavonia Ferry Railroad Company, party of the second part, recites that the party of the first part owns and operates the street surface railroads and railroad routes in the city of New York upon Twenty-
I think that section 104 of the Railroad Law applies to contracts made in pursuance of section 78 of that law. By the express pro-^ visions of section 78, however, that section did not apply to any lease in existence prior to May 1, 1891. The Houston, West Street and Pavonia Ferry Railroad Company was, therefore, operating a
I think, therefore, that there was no obligation imposed upon the Houston, West Street and Pavonia Perry Railroad Company to give a transfer from any portion of the Broadway and Seventh Avenue-line to a point on the-Twenty-third Street line, or to carry passengers upon the Twenty-third Street line which was imposed by the lease of the Twenty-third Street Railway Company to the Houston, West Street and Pavonia Ferry Railroad Company. Nor do I think that the subsequent consolidation which merged the Houston, West-Street and Pavonia Ferry Railroad Company and other corporations into a new corporation, which was called the Metropolitan Street Railway Company, imposed such an obligation, or is included in the provisions of section 104 of the act. Neither the Broadway and Seventh Avenue Railroad Company nor the Twenty-third Street-Railway Company was included in the corporations which were merged and became the Metropolitan Street Railway Company. They are still existing corporations, the owners of their respective lines and railroads; and the Metropolitan Street Railway Company and subsequently the defendant corporation came into possession of these railroads simply as the assignee of the original lessee. The-defendant corporation is located in Westchester county and has no-connection with any portion of either the Twenty-third Street line- or the Broadway and Seventh Avenue line ; and so the provisions-of section 104 of the Railroad Law did not apply to this lease made-between railroad companies owning or operating lines of railway within and without the city of New York, as it is expressly pro
My conclusion is that the determination of the Appellate Term must be reversed, with costs, and the judgment of the Municipal Court affirmed.
Van Brunt, P. J., concurred.
Dissenting Opinion
The history of the legislation bearing upon the subject of transfers shows that it has been the uniform policy with reference to-franchises dealing not alone with steam railroads, but with street surface railroads as well, that there should be no consolidation or leasing of competing lines, the theory being that it is in the interest of the public to have competing lines. It is conceded that this policy as a favor to street surface railroads has been departed from ; but in all the cases in which the right to consolidate or to lease contiguous-lines has been granted such leave or right was conditioned upon the corresponding benefit being conferred upon the public of obtaining a continuous ride for' a single fare; and to that end it was the intent- and purpose of the various acts to give to the public the right over
As to construing the statute in detail, I do not think it necessary to add to what was said in the opinion of this court in Mendoza v. Metropolitan St. R. Co. (51 App. Div. 430) or to what has been said herein by the learned Appellate Term. (Topham v. Interurban Street R. Co., 42 Misc. Rep. 503.) For the reasons stated in those opinions, therefore, I think that the determination of the Appellate Term should be affirmed, with costs.
Determination reversed and judgment of Municipal Court,' affirmed, with costs.