
    Frederick A. Wichelman, Appellant, v. The Western Union Telegraph Co., Respondent.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Transportation Corporations Law — Unintentional omission by a telegraph operator, of a word in a despatch, not penal.
    The unintentional omission, by a receiving telegraph operator, of the word “ express ” in his transmission, by telephone to the person addressed, of the message “ Ship quick express twenty cases popcorn ”, is not a violation of the statute (Laws 1890, ch. 566, § 103) requiring telegraph companies to transmit dispatches “with impartiality and in good faith ”. The statute is penal and no wilful suppression of any part of the message will be presumed.
    Appeal from a judgment, in favor of the defendant, rendered in the Municipal Court of the city of New York, first district, borough of Manhattan.
    Samuel Ashton, for appellant.
    Francis Raymond Stark (George H. Fearons, of counsel), for respondent.
   Leventritt, J.

This action was brought to recover a penalty under section 103 of the Transportation Corporations Law (Laws of 1890, chap. 566) by which telegraph and telephone companies are required to receive despatches and “ transmit the same with impartiality and in good faith and in the order in which they are received ” and in the event of failure so to do, are made liable for a penalty of $100 recoverable in a suit by the sender.

■On the 1st day of September, 1898, the plaintiff filed with the defendant, at its office in the city of New York, a message for telegraphic transmission to one J. L. Thompson at Calais, Me; The message was promptly and regularly forwarded to, and received at, its office at Calais; but, instead of being delivered in the usual manner by messenger, it was telephoned by the defendant’s operator to Thompson. The material portion of the message read: “Ship quick express twenty cases pop-corn.” It is claimed by the plaintiff that in repeating the telegram over the telephone the word “ express w was omitted, as a consequence of which Thompson necessarily failed to comply with the directions. Upon this omission it is sought to predicate a violation of the statute in that the defendant did not transmit the message with impartiality and in good faith ”. No testimony was offered on behalf of the defendant, in whose favor, however, judgment was rendered. We are satisfied that this was correct. Even had the plaintiff established his contention by undisputed facts, he would not have been entitled to recover on the law, as his case does not come within the spirit or intent of the statute. The provision invoked is penal and must be strictly construed. Romberg v. Kouther, 27 Misc. Repl 227. The imposition of the penalty must be limited to acts of partiality, bad faith, or preference, in the order of transmission. To sustain his position the plaintiff would import into the statute other elements unwarranted by its terms.. If the defendant was guilty of a breach of its contract with the plaintiff, the remedy lies elsewhere. The statute leaves nothing to conjecture or construction. The obvious intent is expressed in clear language; it was designed to prevent favor and discrimination in the transmission of messages. It is hardly necessary to invoke the rule of strict construction; the meaning is plain without it. A different question might be presented had there been a willful suppression of a part of the message, but, here, there is no suggestion of anything beyond a concededly unintentional omission of a word in repeating the message. And as far as this omission is concerned there is a dispute of fact, so that even were the plaintiff correct in his law there would be no ground for reversing the justice’s conclusion on the facts. The plaintiff introduced in evidence a letter, which passed from the operator at Calais to the defendant’s superintendent in New York, which, among other things, contained the positive statement that the word “ express ” had not been omitted when the telegram was communicated to Thompson. There was thus a conflict on the main question of fact involved, the solution of which we should not disturb even were there no other obstacle to the plaintiff’s recovery.

Upon this appeal the appellant dwells upon an exception which he took to the exclusion of a letter which he received from Thompson some months after the alleged defective transmission of his message. The letter was not marked for identification nor is it annexed to the return so that we are unable to pass upon its admissibility; but it is manifest that if the statements concerning it, made by counsel and spread upon,the record, are true, it was correctly excluded as being the unsworn declaration of a third person made long subsequent to the transaction to which it referred.

The judgment should be affirmed.

Freedman, P. J., and MacLean, J., concur.

' Judgment affirmed, with costs to respondent.  