
    William Palm, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    1. Railroads—Limitation as to fare.
    The limitation contained in chap. 195, Laws 1846, as to the amount of fare which the defendant road might charge and collect from passengers, was expressly limited to that portion of its own road within this state, and does not apply to a road run by defendant under lease.
    2. Same—Laws 1886, chap. 763.
    The road leased by defendant was organized under chap. 763, Laws 1866, as amended by chap. 722, Laws 1869, neither of which limits the rate of transportation. Said acts provide for the construction and operation of the road, and for a lea«e thereof “when duly formed into a corporation under and pursuant to ” the general railroad act. Held, that before the defendant could be held liable for the penalty prescribed by the general railroad act for extorting more fare than the amount specified therein, it was necessary for plaintiff to show that the special acts authorizing the formation of the railroad in question were followed up by an actual and due formation of a corporation under the general railroad act.
    Appeal from judgment entered upon the decision of a judge after trial before him without a jury.
    
      Page & Taft (John E. Parsons, of counsel), for app’lt; R. J. Shadbolt (E. M. Wight, of counsel), for resp’t
   Freedman, J.

This action was brought for the recovery of a penalty given by statute. The claim of the plaintiff is that on a certain day on which he took passage on a passenger train of the defendant to be carried on the defendant’s road from One Hundred and Thirty-fourth street, in the city of Rew York, to Morris Park, in the state of Rew York, and thence back to said One Hundred and Thirty-fourth street, he was charged and compelled to pay, contrary to the laws of the state of Rew York, fourteen cents in excess of the sum which the defendant had the right to ask and to receive, by means whereof the defendant became liable to pay to the plaintiff, under and by virtue of the statutes of the state of Rew York to prevent extortion by railroad companies, the sum of fifty dollars, together with the sum of fourteen cents so asked and received as aforesaid in excess of the legal fare.

The defendant is a foreign corporation, having been originally chartered by the state of. Connecticut in the year 1844 under the name of the Rew York & Rew Haven Railroad Company. In the year 1846 it applied to the legislature of the state of Rew York for permission to extend its road from the Connecticut state line to the line of the Rew York & Harlem Railroad, and to unite or connect with the last-mentioned railroad at or near Williams Bridge. Such permission was granted by chapter 195 of:the Laws of 1846 upon certain conditions, and one of said conditions was that the charge for the transportation of any passenger and his ordinary baggage shall not exceed in the aggregate the sum of three cents per mile on that part of said road within this state.

This condition is not applicable to the case at bar, because it is expressly limited to the part of the road specified, and because the plaintiff was not a passenger over that part of the road.

The occurrences.out of which plaintiff’s claim, arose took place on a railroad known as the Harlem Eiver & Port Chester Eailroad, and operated by the defendant under a lease, and the liability of the defendant for the penalty was held by the trial judge to rest upon subdivision 9 of § 28 of chapter 140 of the Laws of 1850, and the amendment of said chapter by chapter 185 of the Laws of 1857, and chapter 415 of the Laws of 1886. These provisions constitute parts of what is commonly known as the general rail-. road act, and they confer upon railroad corporations formed under the said act the power to regulate the compensation to be paid to them for the transportation of passengers, but at the same time they provide that such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile.

It, therefore, becomes necessary to consider the legal status of the Harlem Eiver & Port Chester Eailroad Company, and to determine what rate of fare it had a right to charge. This company was shown to have been organized under chapter 763 of the Laws of 1866, as amended by chapter 722 of the Laws of 1869. Neither of these acts fixes or limits the rate of transportation over the road, and taken together they only authorize the construction, maintenance and operation of the road in a certain manner prescribed, which includes a lease, by certain persons specifically named and their associates, “ when duly formed into a corporation under and pursuant to an act to authorize the formation of railroad corporations and to regulate the same, passed April 2, 1850.’’ Under the peculiar provisions of these acts it is, therefore, essential that the actual and due formation of a corporation under the general railroad act should be shown before the prohibition contained in the general railroad act can be enforced by the infliction of a penalty under the acts amendatory thereof, for the general railroad act in terms applies only to corporations formed under it.

■ Even upon the assumption, therefore, the validity of which need not be discussed at present, that the defendant, as a foreign corporation, under its lease, had no right to charge a higher rate of fare than the Harlem River & Port Chester R. R. Co., when legally organized, could have charged under the general railroad act, and that the defendant, as lessee, is liable for the penalty in every case in which its lessor would have been liable, it still remained incumbent upon the plaintiff to establish at the trial, and as ¡oart of his case, that the special acts authorizing the formation of the Harlem River & Port Chester R. R. Co. were followed up by an actual and due formation of a corporation under and pursuant to the general railroad act.

The case contains no finding nor any evidence upon this point, and consequently there is a fatal defect.

This is a penal action. It rests upon the provisions of apenal statute. The claim is that the defendant has been guilty of extortion. In such a case the rule is well settled that all doubtful points are to be construed in favor of the defendant; that the plaintiff must show a clear right to the penalty, and that he must bring himself strictly and literally within the operation of the statute. This the plaintiff failed to do.

The j udgment should be reversed' and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Ingbaham, J., concur.  