
    James W. Corcoran, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Bcdk'oad corporations—penalty for a refusal to accept a mileage book, not accompanied by a ticket — an agreement by a passenger to exchange coupons for a ticket is without consideration— effect of a subsequent amendment to the la/w, requiring such exchange.
    
    The refusal of a railroad corporation, hy its train conductor, to accept, on October 34, 1898, a mileage hook tendered by a passenger in place of a ticket for passage on its road, made the corporation liable to the passenger for the penalty imposed by the statute, requiring the issue of such hooks (Laws of 1895, chap. 1037), where the action was brought within one year after the cause of action accrued.
    As the statute absolutely required the issue of such books upon the terms fixed hy it, there was no consideration for a contemporaneous agreement contained in the mileage book and signed hy the passenger, providing that, when presented to the conductor, the mileage hook must he accompanied hy a passage ticket received in exchange for an adequate number of coupons which had been previously detached from the hook by the company’s ticket agent, nor could the corporation invoke, in its defense, an amending act (Laws of 1896, chap. 885, § 1), subsequently passed, which provided for an exchange at the ticket office of such mileage coupons for a passage ticket.
    Hardin, P. J., aiid Follbtt, J., dissented.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 27th day of April, 1897, upon the verdict of a jury for fifty dollars rendered by direction of the coiirt, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover a penalty of fifty dollars under chapter 1027 of the Laws of 1895, being “ An act in relation to the issue of mileage books by railroad corporations.”
    
      Mullm, Purcell dé Walker, for the appellant.
    
      John W.' Carlisle, for the respondent.
   Ward, J.:

The plaintiff resides at Watertown, N. Y., and is a member of the firm of .Hunting, Weeks & Corcoran, wholesale dealers in plumbers’supplies, and sold the goods of the concern on the road. On the 22d day of October, 1895, he purchased of the defendant in Syracuse a mileage book, paying twenty dollars for it. On the twenty-fourth of October" he was at Pulaski, in Oswego county, having liis mileage .book with him, which had about 900 miles upon which to travel, and was intending to take a train on defendant’s road to Syracuse. A train from Oswego on the same road had just started" away when he got to the depot. The ticket agent at the Pulaski office was out at the train which plaintiff desired to take and it was about to start. The plaintiff asked the conductor of the train-if he was going right away and. he said that he was, and the-plaintiff got on the train. .. The train was about 150 feet from the depot. When upon the train the conductor came and asked the plaintiff for a ticket. The plaintiff 'had none, but tendered him the mileage hook.. The conductor declined to take the mileage, and upon plaintiff’s failure to pay his fare or produce a ticket the rail-, road men in charge of the train expelled the plaintiff from the train. There was no dispute about the facts upon the trial. The defendant moved for a nonsuit, and the plaintiff for the direction by the court of a verdict in his favor, and the plaintiff’s motion prevailed.

Upon the trial the plaintiff offered in evidence his mileage boolc which entitled the plaintiff to travel 1,000 miles bn the line or lines of this railroad.

Upon receiving the mileage book it appeared that the plaintiff signed what is called a contract printed upon the hook, which provided, among other things, as follows: “ It is only good for passage on the train when presented to the conductor with a passage ticket which has been received in exchange for the coupons which have been detached from this book. The passage ticket given in exchange for such coupons is subject to all the conditions in this contract, being good only for a continuous passage within the time named therein, and no stop over will be allowed. * * * Neither this mileage hook nor the coupons attached to it are of value unless stamped by selling agent and signed by the purchaser. Purchaser’s signature must be witnessed by the agent of the company selling this mileage book. * * * Coupons of this book will not be received in exchange for ■ a passage ticket unless they have been detached by ticket agent. * * *

In consideration of .this book being sold at a reduced fare the undersigned agrees to purchase and accept it upon the above conditions, which he or she has read and fully understands and hereby undertakes to abide by in every case.”

The defendant’s answer did not allege this contract or make any reference to it.

Chapter 1021 of the Laws of 1895, under which this mileage book was issued, is as follows: “ Every railroad corporation operating a railroad in this State, the line or lines of which are more than one hundred miles in length, and which is authorized by law to charge a maximum fare of more than two cents per mile and not more than three cents per mile, shall issue mileage books entitling the holder thereof to travel one- thousand miles on the line or lines of such railroad, for which the corporation may charge a sum not to' exceed two cents per mile.

Any railroad corporation which shall refuse to issue a' mileage book as provided b.y this section, or, in violation thereof, to accept such mileage book for transportation, shall forfeit fifty dollars, to be recovered by the party to which such refusal is made; but no action can be maintained therefor unless commenced within one year after the cause of action accrued.”

The defendant’s road came within the provisions of tliis statute, and the action was commenced within one year after the cause of action accrued.

The plaintiff’s contention is that, by force of the statute .quoted, the conductor was bound to take the mileage from the book and permit the plaintiff to travel upon the train ; that, under the circumstances of the case, he was not bound to apply to the agent for a .ticket uponkis mileage book under the contract cited; that the contract was not authorized by the statute, but was a limitation of the plaintiff’s rights under the statute and void> and that there was no consideration for the contract, and that the defendant, to avail itself of the contract, should have alleged it in the answer.

•The defendant contends that the contract was binding and that the plaintiff was not entitled to transportation upon the train unless he had complied with its conditions; that the book having been given in evidence by the plaintiff-the contract was established in the case upon the plaintiff’s own showing, and the defendant could avail itself of the contract (without having alleged it in its answer) upon a motion for a nonsuit. «

The penalty recovered in this action accrued under the statute cited, when “ any railroad corporation * * * shall refuse to issue a mileage book as provided by this section, or, in violation thereof, to accept such mileage book for transportation.” The recovery in this case is predicated upon the latter clause — the refusal of the defendant to accept the mileage book for transportation.

The act of 1895 did not'provide for the contract "upon which the defendant stands; that contract was only sanctioned by subsequent legislation, to wit, chapter 835 of the Laws of 1896, which amended the act of 1895 and provided that»“the holder of any such mileage book shall be entitled upon surrendering .at any ticket office-on the lines of such railroad coupons equal in.number to the number of miles which he * ^ * wishes to travel on the line or lines ■ of such railroad, to^ a mileage exchange ticket therefor,” with the further provision that such exchange ticket should entitle the holder to travel on the railroad without producing the mileage book.

This amendment was evidently procured for the purpose of justifying the railroad companies in imposing upon the public, when the mileage book was demanded, the contract under which the defendant justifies its action in this case; but this case is governed by the act of 1895, and we do not think that that act authorized the defendant, as a condition of its transportation upon its lines and the issuing of a mileage book, to require the execution of the contract that appears in this case. The statute is absolute that the mileage-book should be issued upon the payment of the required sum, and that mileage book entitled the holder to transportation upon the cars. Any condition to the exercise of this right, not warranted by the statute, was a violation of the spirit of its provisions and could not be enforced.

Again, there was no consideration for this contract. The assumed consideration was the reduction of fare, but the reduction of fare was a matter of statutory right .which the plaintiff had upon the tender of the twenty dollars and the demand for the mileage book at the proper office of the defendant.

“ Neither the promise to do a thing, nor the actual doing of it, will be a good consideration if it is a thing which the party is already bound to do either by the general law or by a subsisting contract with the other party.” (Pollock on Principles of Contracts, *176;' Crosby v. Wood, 6 N. Y. 369 ; Deacon v. Gridley, 15 C. B. 295.) “Nor is the performance of that which the party was under a previous, valid legal obligation to do,” á sufficient consideration for a new contract. (1 Pars, on Cont. *437; Vanderbilt v. Schreyer, 91 N. Y. 392, 401, and cases cited on the latter page; Seybolt v. The N. Y, L. E. & W. R. R. Co., 95 id. 562.)

Having reached these conclusions, it is unnecessary to consider the question whether the defendant could avail itself of this contract, not having pleaded it.

The judgment and order appealed from should be affirmed, with costs.

All concurred, except Hardin, P. J., and Follett, J., dissenting.

Judgment- affirmed, with costs.  