
    Arthur N. Harris, Respondent, v. The Interurban Street Railway Company, Appellant. Isaac Linter, Respondent, v. The Interurban Street Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Appeal — Return incomplete — Amendment — Action to recover penalty for failure to give transfer on street railway.
    Where, in an action to recover a penalty for an alleged failure of a street railway company to give a transfer, the evidence shows that there were at least two lines of cars running over and along the street and over the same tracks at the point where plaintiff boarded a car, and a lease of said lines, alleged to have been given by another street railway company to the defendant, was received in evidence and marked as an exhibit but was neither attached to, nor submitted with, the return on appeal, this court cannot determine whether or not the car boarded by plaintiff ran over a line controlled or operated by the defendant and the record must be returned to the files of the court for amendment or completion.
    Two appeals from judgments rendered in favor of the plaintiffs in the Municipal Court of the city of Hew York, borough of Manhattan, thirteenth district.
    Henry E. Goddard and J. P. Cotton, Jr., for appellant.
    Jacob Gordon, for respondents.
   Per Curiam.

Both of the above entitled actions were brought to recover penalties under section 104 of the Railroad Law, for the alleged failure of the defendant to give transfers.

They were tried as one case, the evidence in the Harris case to be considered as having also been taken in the Linter case. The material facts are undisputed. Harris, the plaintiff, in company with Linter and a Hr. and Hrs. Weinstein, boarded a car of the defendant at Chatham square and the Bowery, intending to go to the Juvenile Orphan Asylum at One Hundred and Seventy-sixth street and Amsterdam avenue. This car was marked “Amsterdam Ave. & 195th St.” Weinstein paid the fares for the entire party. Upon reaching the intersection of One Hundred and Twenty-fifth street and Third avenue the conductor of the car informed the party that he had received orders to take the car direct to One Hundred and Twenty-ninth street, and he thereupon gave them transfers, which he stated would be good upon a car going west upon One Hundred and Twenty-fifth street.

These transfers were taken by the plaintiff and his friends, who alighted from the car and immediately boarded another car which was about to proceed westerly upon said One Hundred and Twenty-fifth street. This car, the plaintiff testifies, was also marked “Amsterdam Ave. & 195th St.” Upon tendering the transfers to the conductor of that car they were refused, the conductor saying “ it was against the rules,” and the plaintiff was told that he must “ pay your fare or get off.” The plaintiff thereupon paid five cents fare, as did the other members of the party.

There is no testimony in the case showing that the plaintiff failed to take the proper car, nor was there any reason advanced for the refusal of this conductor to honor the transfers given by the first conductor. Under such circumstances it might well be held that a refusal to accept a transfer is equivalent to a refusal to give one and thereby renders the defendant liable to the penalty sued for: Tullís v. Brooklyn Heights R. R. Co., 11 App. Div. 494. It was shown, however, by the defendant that there are at least two lines of cars running westerly over and along One Hundred and Twenty-fifth street from its intersection with Third avenue, which cars run over the same tracks. A lease of these lines alleged to have been given by the Metropolitan. Street Railway Company to the defendant was offered and received in evidence and marked “ Exhibit 2,” as appears by the stenographer’s minutes, but no such lease is attached to or submitted with the return.

The transfers given to the plaintiff and admitted in evidence may be taken as showing that the defendant controls and operates one of the lines above referred to, but in the absence of the lease this court cannot determine whether or not the car boarded by the plaintiff ran over a line controlled or operated by the defendant, and that such was the fact we cannot assume.

The records in these cases must, therefore, be returned to the files of the court to enable them to be amended or completed.  