
    James O’Connor, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    January 24, 1908.
    Street railroads — refusal of transfer — sections 39, 101 and 104 of Railroad. Law analyzed and distinguished —• no penalty under section. 39 for refusal of transfer—pleading, when defective — trial—defect cured by accepting issue.
    Section 104 of the Railroad Law, requiring, .street surface railroads to issue transfers so that a passenger may make a “continuous trip” for a single fare, applies only to companies which operate the lines of other companies acquired under section 78 of the Railroad Law by lease or other contract. It has no application where different lines are constructed by the same company.
    Section 39 of th'e Railroad Law imposes no penalty for a refusal to issue transfers, but only for exacting “ more than the lawful rate of fare,” and, taken in connection with the first part of section 101 of the Railroad Law, merely entitles a passenger to a “ continuous trip.” from, any point on the road of the carrying company, or on any of the roads operated or controlled by it by lease or. other contract, to any other point on .any of said roads over the connecting roads of the company as far as the car which receives him runs or could run.
    The second provision of said section 101, providing that not more, than one fare shall be charged within the limits of a city or village for a passage over .the main line of the road or any branch or extension thereof, does not apply to roads operated under a lease or contract, but only to the main line and branches thereof built by the carrying company itself and entitles a) passenger to transportation over the main line and brancliés thereof without the payment of another fare.
    RTeither of said provisions of section 101 applies where two lines owned by the same company do not connect, that, is to say, run into each other, but on the contrary cross at right angles. ■ .
    Sections 104 and 39 of the Railroad Law are separate and distinct and are not to be construed together. ■ Hence, a complaint which alleges a refusal to give a transfer at a point where two roads operated by the defendant crossed at right angles, but demands a penalty under section 39 of the Railroad Law, does not state a cause of action to recover the penalty provided by section 104 of said law, unless it be alleged that the two roads in question were operated' by the defendant as lessee or under some other contract.
    An allegation in such complaint that the defendant operated “its” roads intersecting at right angles is not equivalent to an allegation that it operated as lessee or under some other contract.
    But when in an action under such complaint the defendant' admits that it was under obligation to issue a transfer at said point, and tries the action upon that basis 'and moves for judgment on the sole ground that the transfer was refused by mistake, not amounting to gross negligence, and that there was no violation of sections 101 and 39 of the Railroad Law, the complaint may be construed as seeking a penalty under section 104.
    Appeal by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 5th day of February, 1907.
    
      A. M. Williams, for the appellant.
    
      John R. Farrar, for the respondent.
   Gaynor, J.:

The complaint alleges that the defendant operates “ its ” electric street railroad in the Borough of Brooklyn called the Greenpoint line, which runs through several streets, including Kent and Classon avenues, and “its” other called the Flushing and Graham avenue line, which runs through several streets, including Flushing avenue; that the said railroads cross each other on the said Flushing and Classon avenues, two streets which cross, at right angles. It then alleges that the plaintiff became a passenger on the first mentioned line and paid his fare of five cents; that he demanded á transfer ticket to enable him to change to the said second mentioned line at the said' point of crossing, and was refused; that he changed to a car of the said latter line at the said crossing, and another fare of five cents was exacted of him, which he paid. The evidence conforms to the complaint, but there is no evidence as to whether the defendant constructed and owns the said roads, or only ■operates them as lessee or under some contract. The complaint alleges that the said two lines are operated under section 101 of the Bailroad Law, and that the defendant incurred the penalty of $50 prescribed by section 39 of the Bailroad Law. As section 101 relates to both roads constructed and owned by the operating company, and roads only controlled and operated by it by lease or ether contract, this allegation does not inform us whether the roads in question are owned by the defendant, or only operated by it by lease or other contract. And section 39 provides such penalty against any railroad corporationwhich shall ask or receive more than the lawful rate of fare, unless' such overcharge was made through inadvertence or mistake not amounting to gross negligence ”. It .was taken into the codification of the railroad laws from chapter 185 of the Laws of 1857 as amended by chapter 415 of the Laws of 188.6.

The complaint is therefore confusing. It alleges a refusal to give a transfer, but claims a penalty under section 39. That section provides no penalty for a refusal to give a transfer, but only for asking or receiving more than the lawful rate of fare. Only section 104. of the Railroad Law requires the giving of transfers, and it prescribes a penalty of $50 for refusing to do so. ’ Section 39 has nothing, to do with a violation of the requirements of section 104.

And when we read section 104 we find that the plaintiff’s case is not within it by the complaint, unless we can eke out of the scant words of the complaint an allegation that the defendant controls and operates the two- crossing roads in question by lease or other • coii tract; and not by the evidence, for there is none on that head. That section relates only to a street surface railroad company which operates the street surface railroad lines of other companies which it has acquired by lease or other contract, i. <?., formerly under chapter 305 of the Laws of 1885 and now under section 78 of the Railroad Law. It does not cover the case of' different lines constructed by the same company. It provides that any street surface railroad corporation which acquires the use and operation of the roads of other companies by contract shall 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 ”, and “ 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”. For every refusal tocomply with the said requirements the said section prescribes a penalty of $50.

This section relates only tó a continuous trip ” which is made hv. changes from the line of one of such companies to the line of another. It requires that passengers he carried in such continuous trip by changes of cars from the road of one of such companies to that of another, and that for that purpose transfers be given. The penalty-prescribed is for the combined refusal, to carry the passenger on his continuous trip and to give him a transfer ticket to enable him to be so carried. The refusal of the transfer ticket is of the gist of the offense. The offense cannot exist unless a transfer ticket was demanded and refused. The section is complete in itself. It prescribes both the offense and the penalty. Section 39 has no application to such offense.

To see if the plaintiff may recover, we have therefore to discard the fact of the refusal of a transfer to him, as no penalty may be based on that. And to see whether the defendant asked or received of him “ more than the lawful rate of fare ”, for which section 39 imposes the penalty, we have to turn to section 101, for there is no other section having to do with the subject; and section 101 prescribes no penalty.

It contains two distinct provisions relating to fares. The first covers the case of a “ continuous ride ”, not of a “ continuous trip ”, as is the case with section 104, as we have seen. It was taken into the codification of the railroad statutes from the street surface railroad act of 1884 (sec. 13, ch. 252), and is as follows: “Ho corporation constructing and operating a railroad under the provisions of this article, or of chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four, shall charge any passenger more than five cents for one continuous ride from any point on its road, or on any road, line or branch operated by it, or under its control, to any other point thereof or any connecting branch thereof, within the limits of any incorporated city or village.” This was not intended in the act of 1884 to do more than just what it says, and what was then and thereafter well understood and practiced, viz., establish the fare at five cents for “ one continuous ride ” from any point on the road of the carrying .company, or on any of the roads operated or controlled by it (i. <?., by lease or'other contract), to any other point on any of said roads. It did not provide for changes of cars, because it only contemplated and provided in terms for a “ continuous ride ”. The act of 1884, being complete in itself, had to provide for the rate of fare, and did so by this provision, the meaning of which was that the passenger should be carried for five cents over the connected roads as far as the car which received him ran, or could run. And in section. 101 this provision is continued with the same meaning.

The second provision of the said section seems to be new with it. It is entirely plain in its object and meaning. It drops the phrase “ continuous ride ”, and provides for a “ passage ”. It does not cover the case of all of the system of roads of the carrying company, whether owned by it, or controlled by it by lease or other contract, as the said first provision does, but only relates in so many words to “ the main line,of road ” built by a company, and “ any branch or extension thereof ” built by it under the said act of 1884, or under the Bailroad Law. It is as follows: “ Not more than one fare shall be charged within the limits of any such city or village, for passage over the main line of road and any branch or extension thereof if the right to construct such branch or extension shall have been acquired under the provisions of such chapter or of this article.”. Under this provision the car which receives the passenger on the main line of road has to continue to carry him over such" bi’anch or extension, and vice versa, without the payment of another fare;, or, if no cars continue from the main line of road over such branch or extension, or vice versa, then the passenger has to be sent to “ the car ahead ”, i. e., at the point of continuation or connection of the main line and the branch or extension, and carried without paying another fare.

It is plain that neither of these provisions covers the plaintiff’s case, which is' not that of a continuous ride ” so far as a car runs, nor .of a main line of road, carrying passengers over any branch or extension thereof, but is the case of two lines owned by the same company which do not connect, i. e., run into each other, but cross at right angles ■—• unless it can be eked out in some way that the two roads in question are operated by the defendant as lessee or under some other contract, which would bring the case under section 104.

' The cases heretofore decided by us have not been overlooked (Snee v. Brooklyn Heights R. R. Co., 120 App. Div. 570; Munro v. Brooklyn Heights R. R. Co., Id. 516; Tullis v. Brooklyn Heights R. R. Co., 71 id. 494) in the foregoing construction and analysis of the said sections, and we desire to express ourselves as not following anything heretofore said in any case to the effect that section 104 and section 39 are to go or be construed together. ,

' But it may be that the plaintiff’s case may be brought by us under section 104, in spite of the obstacles he has put in the way. The allegation of the complaint that the defendant operates “its” said two roads- could not be taken as an allegation that it is the lessee thereof, it is true. When we look to the course of the trial, however, we find that it proceeded on the basis of the refusal of the transfer ticket on the plaintiff’s demand therefor, and of the defendant’s concession that it was under .obligation to issue it. This theory of the issue being tried is maintained to the end, for at the close of the evidence the defendant moves for judgment in its favor on the sole ground “ that it appears that this transfer was refused by mistake not amounting to gross negligencé ”, and that “ there has been no violation of section 101 or section 39 of the Railroad Law ”. This was meaningless, unless the case was being tried for a refusal to cany the plaintiff on a continuous trip and give him a transfer ticket therefor under section 104. . The complaint may therefore be interpreted in accordance with the course of the trial as praying for a penalty of $50 “ in accordance with the statute in such case made and provided ”, instead of under section 39.

The judgment may be affirmed.

Present — Jenks, Hooker, Gaynor, Rich and Miller, Jj. .

Judgment of the Municipal Court unanimously affirmed, with costs.  