
    Mary E. McLaughlin, Respondent, v. New York City Railway Company, Appellant. (3 Actions.)
    
      Penalty for refusing a transfer to a connecting railway company — what railway company is not within the exception of the Railroad Law providing “ nothing in this section shall apply to any lease in existence prior to May first, eighteen hundred and ninety-one”—effect of a passenger’s fare having been paid by an escort — only one penalty can be recovered in a single action.
    
    The phrase “every such corporation entering into such contract,” used in section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1893, chap. 676), requiring certain street railway companies to give transfers to connecting lines, refers to a corporation and a contract of the character mentioned in section 78 of the Railroad Law (as amd. by Laws of 1893, chap. 433). Sections 78 and 104 of the Railroad Law, as amended, must, therefore, be construed together when determining the obligation of a street railway company to give transfers. .
    May 13, 1890, the Broadway and Seventh Avenue Railroad Company, which operated a street surface railway upon Broadway, in the borough of Manhattan, city of New York, which crossed Twenty-third street, leased all its lines to the Houston, West Street and Pavonia Ferry Railroad Company. April 33, 1893, the Twenty-third Street Railway Company, which operated a street surface railway on Twenty-third street, in the borough of Manhattan, city of New York, also leased all its lines to the Houston, West Street and Pavonia Ferry Railroad Company. December 13, 1893, the Houston, West Street and Pavonia Ferry Railroad Company was consolidated into the Metropolitan Street Railway Company. February 14, 1903, the Metropolitan Street Railway Company transferred to the New York City Railway Company its right to operate the roads before mentioned.
    
      
      Veld, that in determining whether the final sentence of section 78 of the Railroad Law (as amd. by Laws of 1893, chap. 433), viz., “ Nothing in this section shall apply to any lease in existence prior to May first, eighteen hundred and ninety-one,” operated to relieve the New York City Railway Company from giving transfers from the Broadway line to the Twenty-third Street line and viceversa, it was only necessary to consider the date of the lease of the Twenty-third Street line'to the Hbugton, West Street and Pavonia Ferry Railroad Company, as it waS by that lease that the right to operate both the lines in' question, became vested in a single corporation;
    That ¡when or how the Broadway line' came to be operated by the Houston, West Street and Pavonia Ferry Railroad Company was immaterial;
    That a passenger upon a street car may maintain.an action to recover the penalty prescribed by the statute for the failure of a street car company to issue a, transfer to her, although such passenger's fare was not paid by herself, but by her escort;
    That, notwithstanding the language of section. 104 of the statute, as amended, that “ for every refusal to comply with the requirements of this' section, the corporation so refusing (to issue a transfer) shall forfeit fifty dollars to the aggrieved party,” only one penalty can be recovered- in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.
    Appeal in each of three actions by the defendant, the New York, City Railway'Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of Ike plaintiff, entered in each action on the 29th day of April, 1904.
    
      Joseph P. Cotton, Jr., for the appellant.
    
      Frederick N. Van Zandt, for the repondent.
   Per Curiam,:

The plaintiff has. had. the judgment, of the Municipal Court in these three actions, in the aggregate for ten penalties of fifty dollars, each, recovered under the provisions of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws • of 1892, chap. 676). On five occasions, while she was a passenger 'on the line of street railway operated by the defendant on Twenty-third street in the borough of Manhattan, city of New- York, she was refused a transfer to entitle her to passage , on the line of street railway operated by the defendant in Broadway in that borough, from the intersection of that thoroughfare with Twenty-third street, and. on five occasions she was refused a transfer from the Broadway line to that in Twenty-third street; in each case compelled to pay a second fare after she changed cars. Section 104 of the Railroad Law reads 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. For 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 language of that section, “ Every such corporation entering into such contract,” etc., refers to “ Any railroad corporation or any corporation' owning or operating any railroad or railroad route within this State)” which latter is the language of section 78 of the Railroad Law (as amd. by Laws of 1893, chap. 433). After a careful and exhaustive review of the history of the legislation which has resulted in the enactment of the relevant sections of the Railroad Law, the Court of Appeals in Griffin v. Interurban Street Railway Co. (179 N. Y. 438.) has decided that sections 78 and 104 of the Railroad Law (as amd. supra) must be read together, and that the corporation and contract referred to in the latter section are those which are the subject of consideration in section 78. Section 78 of the statute (as amd. supra) reads as follows: “Any railroad corporation or any corporation owning or operating any railroad or railroad route within this State may contract with any other such corporation for the use of their respective roads or routes, or any part thereof, and thereafter use the same in such manner and for such time as may be prescribed in such contract. Such contract may provide for the exchange or guaranty of, the- stock and bonds of either of such corporations by the other and shall be executed by the contracting corporations under the corporate seal of' each corporation, and if such contract shall be a lease of any such road and for a longer period than one year, such contract shall not be binding or valid.unless approved by the votes of stockholders owning at least two-thirds of the stock of each corporation which is represented and voted upon in person or by proxy, at a meeting, called separately for that purpose upon a notice stating the time, place and object of the meeting, served at least thirty days previously ■ upon each stockholder personally, or mailed to him at his post-office address and also published at least once a week, for-four weeks successively, in some newspaper printed in the city, town or county where such corporation has its principal office,' and there shall be indorsed upon the contract the certificate-of the secretaries of- the respective corporations' under the seals thereof, to the effect that the same has been approved by shell votes of the stockholders^ and the contract shall be executed in duplicate and filed in the offices where the certificates of incorporation of the contracting corporations are filed. The road of a corporation can not be used under any such contract in a manner inconsistent with the provisions of law applicable to its use by the corporation owning the same at the time of the execution of the contract. Such contracts shall be executed by the corporations, parties thereto, and proved and acknowledged in such manner as to entitle the same to be recorded in the office of the clerk or register of each county through' or into which the road so to be. used shall run. Nothing in this section shall apply to cmy lease in existence prior to May first, eighteen hxmdfedT and ninety-one

It appears in this case that the defendant, the New York City Railway Company, is a domestic corporation, and has been since and prior to February 14, 1902; that the Broadway and Seventh Avenue Railroad Company is now and was prior to May 13, 1890, a domestic street railroad, corporation, and as such owned and operated prior' to that date a line of street surface railroad upon BroadWay, in the borough of Manhattan, crossing Twenty-third street, 'and that the line Was wholly within the territorial limits of the city of New York; that the Twenty-third Street Railway Company is now and was prior to April 25, 1893, a domestic street railway corporation, and as such owned and operated prior to that day a line of street surface railway upon Twenty-third street, in the borough of Manhattan, crossing Broadway, and that that line was wholly within the territorial limits of the city of New York. It also appears that the Houston, West Street and Pavonia Ferry Railroad Company was, prior to May 13,1890, and up to December 3, 1893, a domestic street railroad corporation, operating lines of street surface railroad wholly within the territorial limits of the city of New York. On the 13th day of May, 1890, the Broadway and Seventh Avenue Railroad Company, by contract with the Houston, West Street and Pavonia Ferry Railroad Company, leased all its railroad and railroad routes to the Houston, West Street and Pavonia Ferry Railroad Company, including the line in Broadway, and that thereafter and up to the 13th day of December, 1893, in pursuance of that contract, the Houston, West Street and Pavonia Ferry Railroad Company operated the lines of the Broadway and Seventh Avenue Railroad Company, all of which lines were wholly within the territorial limits of the city of New York. On the 25th day of April, 1893, the Twenty-third Street Railway Company, by contract with the Houston, West Street and Pavonia Ferry Railroad Company, leased all its railroads and railroad routes to the latter company, including the line in Twenty-third street, and that thereafter and up to the 13th day of December, 1893, in pursuance of the lease, the Houston, West Street and Pavonia Ferry Railroad Company operated the Twenty-third Street line, all of which lines were wholly within the territorial limits of the city of New York. On the 13th day of December, 1893, the Houston, West Street and Pavonia Ferry Railroad Company was consolidated into the Metropolitan Street Railway Company, which, until about the 14th day of February, 1902, operated the lines in Broadway and Twenty-third street, to which reference has been made. On the 14th day of February, 1902, the Metropolitan Street Railway Company transferred to the defendant all its rights to operate said roads under and by virtue of the said contracts and leases. And thereafter and at the times the plaintiff was refused transfers it operated and controlled the said lines.

The subject of the liability of the railroad company operating the lines in Twenty-third street and Broadway, to ¡Day the penalty provided in section 104 of the Railroad Law (as amd. supra) was the subject of discussion in Topham v. Interurban Street Railway Co. (96 App. Div. 323) in the first department of this court. At the time that action was commenced the Interurban Street Railway Company was operating these two lines of road. It was there decided .by Mr. Justice Ingraham that the defendant was not required, pursuant to the provisions of section 104 of the Railroad Law.(as amd. supra) to give a passenger a transfer from the Broadway line to the Twenty-third street line, or vice versa, and his decision was concurred in by three of the members of the court who sat in the case. ' That case was decided after the trial in the Municipal Court of the actions now under -review. Since the decision in the Topham case, the Court of Appeals has decided the cases of Griffin v. Interurban Street Railway Co. (179 N. Y. 438) and O'Reilly v. Brooklyn Heights Railroad Co. (Id. 450). By reason of these decisions in the Court of Appeals, and more particularly that in the O'Reilly case, we are of opinion that the decision of the first department in the Topham case does not ■correctly state the law as it now exists. It was there held that, because the lease of the Broadway and Seventh Avenue' Railroad Company to the Houston, West Street and Pavonia Ferry Railroad Company was entered into on' the 13th day of May, 1890, the provisions of section 78 of the Railroad Law (as amd. supra) do not apply, inasmuch as the language of the last sentence of that section distinctly exempts from its operation leases in existence prior to May 1, 1891; that the penalty provided for in section 104 of said statute (as amd. supra) did not attach to the defendant, because one of the leases in the chain by which it operated both of the lines in question was executed prior to May 1, 1891; and that, therefore, that section read in connection with section 78 of the statute (as amd. supra) did not contemplate such a situation. In the light of what the Court of Appeals has said in the O'Reilly case, we are unable to concur in this view. The Broadway and Seventh Avenue Railroad' Company leased its Broadway line to the Houston, West Street and Pavonia Ferry Railroad Company, and the latter then became a railroad corporation owning or operating-a railroad or railroad route within this State. From that day until the transfer to the Metropolitan Street Railway Company, the Houston, West Street and Pavonia Ferry Railroad Company possessed, so far as its capacity to contract with the Twenty-third Street Railway Company under section 78 of the Railroad Law (as amd. supra), an entirety made up of its two parts, the Houston, West Street and Pavonia Ferry Railroad Company street lines proper, and those of the Broadway and Seventh Avenue Railroad Company. When the Twenty-third Street Railway Company leased its lines to the Houston, West Street and Pavonia Ferry Railroad Company on the 25th day of April,. 1893, it found the latter to be a railroad corporation owning or operating a railroad route within this State, which is the language of section 78 of the Railroad Law (as amd. supra). In O'Reilly v. Brooklyn Heights. Railroad Co. (supra) the Court of Appeals held that when a street surface railroad company has leased by separate leases the lines of two other companies, and is operating them in connection with its system, it is bound to transfer passengers for a single fare from one of such leased lines to the other, and vice versa. In this connection the court, per curiam, said: “ In order to determine this question we think it important to first consider the nature of the obligation of the defendant company, arising under the statute, upon its executing the lease of the Brooklyn City Railroad Company. It will be observed that the language of the statute is that every such corporation entering into such contract shall carry,’ etc. The obligation to carry, therefore, arises from the entering into the contract. The defendant company was the lessee and entered into the contract with the lessor, thereby undertaking to operate the roads of the lessor company. When a street surface railroad company, engaged in the operation of a railroad under the statute, leases another railroad and commences to operate the same, which roads intersect each other, the evident purpose of the act was that they should be.deemed embraced ’ in the contract and that passengers should be' transferred from one road on to the other so as to entitle 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/ We think, therefore, that a fair and reasonable construction of the statute is that the lessee railroad, in taking ;a lease of another railroad, undertakes to transfer passengers from its own line to that of the leased line and vice versa. If we are correct in this construction it would'then follow that when the defendant company subsequently leased the Vanderbilt Avenue line of the Nassau- Electric- Railroad Company it undertook to transfer passengers from the Vanderbilt Avenue line over its own road, and thence, by its former lease, to transfer passengers over the Brooklyn City lines and vice versa. In other words, the roads leased by the defendant company, in effect, became the roads of that company, operated by it, and when it leased other roads and commenced their operation the Obligation was to transfer passengers over all of the roads operated by it for a single fare!

Section 104 of the Railroad Law (as amd. supra) gave the plaintiff her right to transfer when one line was leased to a -company owning -or Operating other lines,, and the only lease which is necessary to consider, so far as the date of its execution is concerned, in determining whether her cause of action is good, is- the lease of the Twenty-third Street line to the Houston, West Street and Pavonia Ferry Railroad Company of April' 25, 1893, for on that date the Twenty-third Street Railway Company leased its lines to a corporation owning or operating the line in Broadway, and in the light of "this.language of section 78 of the statute (as amd. supra), as construed by the Court of Appeals in the second case referred to, it matters little how it came about that the-Broad way line" was being-operated by the Houston, West Street and Pavonia Ferry Railroad-Company, whether by purchase, lease, license or sufferance. So long as it was operating the Broadway line, the lease of the Twenty-third. Street line gave the plaintiff her right to transfer under section 104 of the statute (as amd. supra), ánd inasmuch as this lease did not exist prior to the 1st day of May, 1891, the date of limitation mentioned in the last sentence of section 78 of the statute (as amd., supra), that - section applied in its fullness to the lease in question, and the provision- of section 104 of the statute (as amd. supra) contemplated the Houston, West Street and Pavonia Ferry Railroad Company and its transaction with the Twenty-third Street Railway Company. ■ , '

■ The, leases and transfers since the 25th day of April,-1893, it-is unnecessary to" consider in this connection, for by its mesne leases and transfers the same control over the two lines in question is now possessed by the defendant as was possessed by the Houston, West Street and Pavonia Ferry Railroad Company immediately upon the execution and delivery of the lease of April 25, 1898.

The appellant presents the further question that inasmuch as the plaintiff’s fares in these three actions were in each instance paid by her escort, she is not entitled to sue for a recovery of the penalties. It is to be noted that the reading of section 104 of the Raih’oad Law (as amd. supra) is that every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare, a transfer,” etc., and in our view it matters not whether the plaintiff paid her own fare or whether another paid it out of money that did or did not belong to her, so long as the payment was made for her that she might lawfully remain a passenger, and so long as she did actually lawfully become and remain a passenger.

The section further provides that “ for every refusal to comply with the requirements of this section, the corporation so refusing shall forfeit fifty dollars to the aggrieved party.” That the plaintiff was the aggrieved party cannot reasonably be doubted. She was a passenger, and it was to enable herself to ride upon one of the connecting lines of cars that the transfer was demanded. Defendant’s refusal compelled her to pay another fare, and it matters not whether it was necessary for her to pay her second fare herself, or whether she might obtain some other person to pay it for her; the primary liability to pay, if she continued her ride, was upon her. The construction advocated by the appellant would be strained in the extreme, and would tend to defeat the very object of the statute.

The only other point remaining to be discussed in these cases is the. amount of recovery the plaintiff is entitled to. Although section 104 of the Railroad Law (as amd. supra) provides that “ for ¿v_ery refusal to comply with the requirements of this section, the corporation so refusing. shall forfeit fifty dollars,” etc., the Court of Appeals has held, in Griffin v. Imterurban Street Railway Co. (supra), that changed conditions in our modern life require that henceforth, if cumulative recoveries are to be permitted, the Legislature should state its intention in so many words, or make a more definite form of statement than that hitherto deemed sufficient; and announces the rule, as it shall henceforth be, in the following language (p. 449): “ A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.” The plaintiff has in these three actions recovered a fifty-dollar penalty for each of ten violations of the statute. In action No. 1 she has recovered two penalties incurred on August 25, 1903, and two incurred on September 2, 1903; in action No. 2 she has recovered one penalty incurred on November 3, 1903, one incurred on November 4, 1903, and one incurred on November 26, 1903; and in action No. 3 she has recovered one penalty incurred on November 26,1903, and two incurred on January 30, 1904.' Had each action been commenced immediately after the penalties recovered therein had been incurred and before the penalties had been incurred which have been recovered in the subsequent action, a single penalty might probably lawfully have been recovered -in each. But all three actions were commenced on the same day, namely, March 16, 1904, and, under the rule cited to the ■effect that the institution of an action for a penalty is to be now regarded as a waiver of all previous penalties incurred, it must be held that the plaintiff is only entitled to recover in these actions for a single penalty incurred on the last day, namely, January 30,1904.

It follows that the judgments in action No. 1 and in action No. 2 must-be reversed and the complaints dismissed, and that the judgment in action No. 3 must be modified so as to reduce the recovery to that of one penalty of fifty dollars, all without costs of this appeal to either party.

Present — Hirschber^, P. J., Bartlett, Jenks, Rich and Miller, JJ.

Judgments of the Municipal Court inaction No. 1 and action No. 2 reversed and complaints dismissed, without costs. Judgment- in action No. 3 modified so as to reduce the recovery to one penalty of fifty dollars incurred on January 30,1904, and as modified affirmed, without costs.  