
    (82 Misc. Rep. 266.)
    MEYERS v. WESTERN UNION TELEGRAPH CO.
    (Chautauqua County Court.
    October 1, 1913.)
    1. Telegraphs and Telephones (§ 78*)—Transmission oe Telegram—“Penal Law.”
    Transportation Corporation Law (Consol. Laws 1909, c. 63) § 103, imposing a penalty upon a telegraph company for refusing or neglecting to transmit a telegram with impartiality and in the order in which it was received, is a penal law which must be strictly construed against oneseeking to recover the penalty.
    [Ed. Note.—For other eases, see Telegraphs and Telephones,' Cent. Dig §§ 79-81; Dec. Dig. § 78*
    For other definitions, see Words and Phrases, vol. 6, pp. 5269-5271.]
    2. Telegraphs and Telephones (§ 78*)—Telegrams—Delay—Penalty.
    Transportation Corporation Law, § 103, does not impose a penalty upon the mere negligence or mistakes of employés but only for acts or omissions characterized by bad faith or partiality.
    [Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig." §§ 79-81; Dec. Dig. § 78.]
    Appeal from Municipal Court of Dunkirk.
    Action by Jacob H. Meyers against the Western Union Telegraph Company. Judgment for the plaintiff in the Municipal Court, and defendant appeals. Reversed.
    
      William S. Stearns, of Fredonia, for appellant.
    Thomas H. Larkins, of Dunkirk, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   OTTAWAY, J.

This is an appeal from a judgment rendered in the Municipal Court of the city of Dunkirk, Chautauqua county, N. Y., in favor of the plaintiff and against the defendant for the sum of $100, with costs.

The action is brought for the statutory penalty under section 103 of the Transportation Corporation Law of the state of New York. This section provides:

“Every such corporation shall receive dispatches from and for other telegraph or telephone lines or corporations, and. from and for any individual, and on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such dispatch and entitled to have the same transmitted. * * * ”

During the month of January, 1913, the plaintiff resided in the city of Pittsburg, Pa.; upon the 14th day of January the plaintiff went to the defendant’s place of business in Pittsburg and delivered to an employé a telegram for the purpose of transmission to his brother,, who then lived at 709 Park avenue, in the city of Dunkirk, N. Y. The telegram r.ead as follows:

“Pittsburg, Pa., Jan. 14, 1913. .
“Mr. David 0. Meyers, 709 Park Ave., Dunkirk, N. Y.—Dave: George is dead. Will be buried Thursday afternoon, two o’clock. Gome at once.
“J. H. Meyers.”

At the time of the delivery of the telegram the plaintiff paid for its transmission to its destination, the city of Dunkirk. In accordance with the service maintained by the defendant, this message was transmitted to its office at Buffalo, N. Y., in the first instance. It was delivered at the office of the defendant in the city of Pittsburg at 7:55 p. m. and arrived in Buffalo at 8:06 p. m. The office of the defendant in Dunkirk closes at 8 p. m., consequently the message was not transmitted from Buffalo to Dunkirk until the morning of January the 15th. It was received at defendant’s Dunkirk office at 8:10 a. m., being the first message received that day.

Owing to a mistake in the transmission of this message, it was received at the Dunkirk office as addressed to 707 Park avenue instead of 709 Park avenue. Upon its receipt the operator in charge delivered the message to a messenger boy for delivery. The messenger at once went to 707 Park avenue, the address upon the message, and made inquiries for the addressee, David C. Meyers, and was informed that no such person lived at that address. Other inquiries were made in that locality and in another locality. The messenger was unable to find the addressee, David C. Meyers, and returned the message to the office of the defendant. David C. Meyers, the addressee, had lived in the city of Dunkirk since the October preceding January 14, 1913, and had boarded at 709 Park avenue. •

The message remained in the office of the defendant until inquiry was made by the addressee as to this message. In answer to his inquiry the employé of the defendant in charge of the office stated that no such message had been received. Subsequently the message was delivered by the defendant by messenger to the addressee.

This action was brought by the plaintiff to recover the sum of $100 upon the foregoing facts, claiming that these facts came within the provisions of section 103 of the Transportation Corporation Law.

The section of the statute under which this action is brought, being highly penal, must be strictly construed against the plaintiff, and in order to recover he must make out a plain case and bring his claim within the letter of the statute. Gifford v. Glen Telephone Co., 54 Misc. Rep. 468, 106 N. Y. Supp. 53; Thompson v. Western Union Co., 40 Misc. Rep. 443, 82 N. Y. Supp. 675; Wichelman v. Company, 30 Misc. Rep. 450, 62 N. Y. Supp. 491; Company v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790.

It was incumbent upon the defendant in its performance of this statutory duty to transmit the message, received by it, with impartiality, good faith, and in the order in- which it was received without discrimination. The statutory penalty is incurred when the acts or omissions are characterized by or result from partiality or bad faith, or when it postpones messages out of the order of time in which they were received, or when it discriminates in the manner and condition of service between its patrons; each and all of the acts which involve the company in penal consequences proceed from some ag- ■ gressive violation of statutory duty imposed and not from a mere negligent omission to act according to the obligation of its contract as a public carrier of messages. The act being highly penal in character, it is to receive such a construction as not to involve penal consequences, except when the act complained of is clearly within the prohibition of the statute. Wichelman v. Western Union Tel. Co., 30 Misc. Rep. 450, 62 N. Y. Supp. 491.

The evidence in this case is barren of any proof of impartiality, bad faith, or neglect to perform its statutory duty. This provision of the statute was not intended to pünish for mistakes or negligence of employés in cases not coming within the clear import of this provision of the statute.

Judgment is reversed, with costs to the plaintiff.  