
    Charles J. Bingemann, Respondent, v. International Railway Company, Appellant.
    (Supreme Court, Erie Special Term,
    September, 1911.)
    Appeal — Review: Presumptions — Motion for judgment on the pleadings— Facts alleged in pleading attacked.
    Railroads and railroad companies — Operation of railroad — Duty to operate and statutory, municipal and official regulations — Rates of fare — Penalties for violation of statute.
    Where the question of the appealability of an order made in -an action brought in the City Court of Buffalo dismissing the complaint and rendering judgment for defendant upon the pleadings is not raised, the appeal may be determined upon the merits.
    For the purposes of such appeal all the allegations of the complaint must be taken as true.
    The lawful rate of fare for a continuous trip over the most direct route within the city of Buffalo is that prescribed by the “Milburn agreement” and in so far as said agreement undertakes and does fix such fare it is a substitute for the lawful uniform rate fixed by section 101 of the Railroad Law and for a violation of the rate fixed by the Milburn agreement a railroad. company is subject to a penalty of fifty dollars under section 39 of the Railroad Law.
    
      Appeal from an order made in the City Court of Buffalo,. denying a motion to dismiss the complaint herein and rendering judgment for defendant on the pleadings.
    Horton, Penney, Spring & Moore, for appellant.
    Harñson & Smith, for respondent.
   Pooley, J.

This is an appeal from an order made in the City Court of Buffalo, denying the defendant’s motion at the opening of trial to dismiss the plaintiff’s complaint herein and render judgment for the defendant on the pleadings.

We fail to find any statutory authority for such practice in the City Court, or any statutory right of' appeal to this court from such an order made in the City Court, because this is not a judgment of the City Court, nor a final order, nor an order affecting a substantial right, as prescribed by section 55 of the City Court Act.

If we are to follow the long established rule in cases laid down in .our courts of record, we will be required to find that such an order is not appealable, but that the better practice is to take an exception to the ruling of the court and proceed with the trial. Dickson v. Knapp, 17 App. Div. 36; Citron v. Bayley, 36 id. 130; Robinson v. Chinese, etc., 42 id. 65; Jones v. Sabin, 122 id. 666.

The question, however, of the appellant’s right to appeal from the order herein has not been raised by the respondent, although the right to appeal to this court upon such ah order is questionable, and we will not assume to determine that practice here.

The question herewith presented is óf extreme importance, and the parties hereto are entitled to have the question'involved determined upon the merits. For the purposes of this appeal the sufficiency of the plaintiff’s complaint is the matter involved, and will be treated, therefore, in the same manner as if a demurrer had been interposed to the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

The action is brought to recover a penalty for the collection of an excess fare, together with-the amount of such excess, pursuant to the provisions of section 39 of the Railroad Law.

The complaint contains allegations showing that the defendant is a street surface railroad corporation, operating an electric street railroad in various streets in the city of Buffalo, F. Y., for the purpose of carrying passengers for hire; that under the laws of the State, the franchise of the defendant, and the so-called Hilhurn Agreement, the defendant is under legal obligation to carry passengers for the uniform fare of five cents on a continuous trip over the most direct route between any two points within the city of Buffalo, and for such purpose to accept passengers transferring from one car line of the defendant to the other, or from the car line of the defendant to the lines of other surface railways in the city of Buffalo, without exacting any further fare; that, on or about the fifteenth of February, the plaintiff boarded one of the defendant’s cars and paid the uniform fare of five cents, and at the time requested of the defendant a transfer to the required destination line, which transfer was duly issued to the plaintiff; that the progress of the plaintiff was delayed in the continuation, of the trip by the defendant and not by the plaintiff, and that the plaintiff proceeded over the most direct route to his point of destination, which required plaintiff to board another car upon another car line where his transfer was tendered and accepted, but upon which his request for a further transfer to his destination line was refused; that, in order for the plaintiff to reach his destination upon the third car line, he, was required, by reason of the refusal to issue a further transfer, to pay to the conductor of the defendant an' additional fare of five cents; that, by reason of the refusal to issue to the plaintiff a further transfer, the plaintiff was cohipelled to “ pay the additional and unlawful fare of five cents,” and.that by reason thereof the defendant, “ pursuant to the statutes of the State of Few York, chapter 39 of the Laws of the State of Few York, inqurred the penalty of $50 to'be paid to this plaintiff, for receiving more than the lawful rate of fare.”

For the purposes of this appeal, all of the allegations of the complaint must be regarded as true, regardless of whatever issues might be raised or what might be presented as a matter of proof at the trial by either party hereto. Sheridan v. Jackson, 72 N. Y. 170; DeWolf v. Ford, 193 id. 397; kley v. Healy, 127 id. 555. Our attention is directed, therefore, to the following provisions of law:

(a) Section 101 of the Railroad Law, which prescribes that a street railroad corporation shall not “ charge any pass'enger 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 city limits of any incorporated city or village.”

(b) Section 104, requiring Every such corporation (under section 78) 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.”

(c) Section 39, which provides a penalty for an excessive fare;

(d) The so-called “ Milburn Agreement.”

It is stated in appellant’s brief, that it is conceded that there has been no violation by the appellant of section 101 of the Railroad Law.

We find in the record no such concession and in fact it is expressly negatived in the brief of the respondent.

Section 101 of the Railroad Law entitles the passenger to one continuous trip over the most direct route of the railroad, or any line or branch operated by it or under its control within the city limits, for five cents and must -he read in conjunction with section 39 of the Railroad Law, which provides that, if any railroad corporation shall ask or "receive more than the lawful rate of fare, such company shall be subjected to the penalty of -fifty dollars. Bull v. New York City R. Co., 192 N. Y. 361.

It further provides that the Legislature expressly reserves the right to regulate and reduce the rate of fare on any railroad constructed and operated wholly or in part under _ such chapter, or under the provisions of this article.

Section ,101 does not, as we view it, require, that any railroad corporation shall issue to any passenger a transfer ticket.

The essence of the charge is not that of refusing a1 transfer ticket, hut of compelling payment- of excess fare. .The passenger is not much concerned .with the methods adopted by the defendant, hut he is concerned in his transportation for an agreed price. He would be content with any arrangement resulting in his reaching his destination by a continuous carriage by the available route. The transfer ticket is a suitable device adopted by the carrier and identifies the holder as entitled to ride without further charge. It is quite as much for the benefit of the carrier as the passenger, and its use has been approved by the Legislature.

Section 104- provides that upon demand such corporation shall without extra charge issue to the passenger a transfer to connecting lines or branches. This section applies to railroad corporations mentioned in section 78, namely, one owning or operating a route and contracting with, another such corporation for the use of their respective roads or routes or parts thereof, while section 101 applies to all street surface railroads operating within the limits of any incorporated city or village.

Hence, section 101 applies to all, while section 104 may or may not be applicable in a given locality., Hnder section 104, several distinct systems might exist,. as in Hew York city, where a passenger for one fare would be entitled to a continuous ride over a given system, hut would not be entitled to a transfer to another system or a ride upon it without paying an additional fare.

Section 104, therefore, in view' of the situation presented in this case, is not applicable to the defendant, hut is important as indicating the pürpose of providing a comprehensive transfer system.

Counsel for the appellant has urged at'great length the intent of the Legislature in passing these various acts with reference to the application of the penalty. It seems clear that the Legislature intended to fix a regular or lawful uniform rate 'of fare for one continuous trip over the most direct route, to be charged by a given street surface railroad corporation within the limits of the city; that there was no intention to interfere with the pre-existing penalty for a charge in excess of such rates; and, in view of certain operating agreements, leases and contracts of street surface railroads, that the passenger should be entitled to carriage for the same single fare over such lines by means of a transfer; and the Legislature has sought to establish such rates and such transfer arrangement.

To adopt-the contention of the defendant, we must assume that the Legislature, by ratifying the Milburn agreement, intended to relieve the Buffalo 'companies of liability to penalty, while enforcing it against all others. The Legislature, in framing the statutes under discussion, were formulating a system by which passengers could be carried on different lines for a given fare by means of a system of transfers; and, by section 104, providing a penalty for “ every refusal to comply with the- requirements of this section.” As we read it, the penalty provided under section 104 is entirely independent of the penalty under section 39; but, as section 104 is not controlling here, it need not be further discussed.

The defendant is either operating under the Milburn Agreement, or under section 101, and in either case is subject to section 39.

The sole question here, therefore, is, What is the legal or lawful rate within the limits of the city of Buffalo, and to what extent is a passenger entitled to ask and receive transfers for a continuous trip ?

The appellant is permitted to make such reasonable rules and regulations in the carriage of its passengers and in the operation of its cars as are necessary in the conduct of its business; and, under the decisions of our State, where such rules and regulations have been found reasonable, the traveling public is required to conform to them. Kelly v. N. Y. City Ry. Co., 192 N. Y. 97; Ketchum v. New York City R. Co., 118 App. Div. 248; Crandall v. Int. R. R. Co., 133 App. Div. 857.

It is urged by the appellant that, as to the city of Buffalo, sections 101 and 104 of the Bailroad Law do not apply, in view of the fact that, within the city of Buffalo, the appellant is operating its cars under the Milburn Agreement, which prescribes that a passenger is entitled to a continuous-trip over the most direct route within the city of Buffalo for the single fare" of five cents; and we find further in the agreement the following quotation: “ The intention of the parties is that all transfers, charges and double fares on-continuous trips so defined shall be abolished, to the end that there may be a uniform five cent fare for a- continuous trip to any point over the most direct route over the entire portion of the entire railroad system owned by the three companies.” -

The Milburn Agreement was entered into by the city of Buffalo, the Buffalo Street Bailway Company, the Crosstown Street Bailway Company, the West Side Bailway Company, and was ratified by an act of the Legislature (chap. 151 of the Laws of 1892), since which time the said act has been effective within the city of Buffalo. It must be assumed under the allegations of the complaint that the defendant is the successor of the companies named, at least to the extent of the route involved here.

Other portions of the said agreement, abolishing certain taxes paid by the various railroad companies to the city of . Buffalo, were included but are not important in this connection.

It is urged, in view of the fact that the defendant here is operating under such an agreement, that it is not, therefore, subjected to the penalties prescribed for a violation of either section 101 or section 104 of the Bailroad Law, but that the remedy of an aggrieved passenger is to sue for breach of contract and prove such damage as he has sustained.

After careful consideration and examination of many cases which have been decided with respect to these questions, we conclude that the lawful rate of fare for a continuous trip over the most direct route within the city of Buffalo is that prescribed by the Milburn Agreement, and that, in so far as the Milburn Agreement undertakes and does fix such fare, it is a substitute for the lawful uniform rate fixed by section 101 of the Railroad Law of the State of Hew York, and that, for a violation of such rate as is fixed by the Milburn Agreement, the appellant here is subject to the same penalty as is prescribed for violation of section 101 of the Railroad Law.

If we were to accept the contention of the appellant in this connection, we would find that the Legislature of the State- of Hew York, without any apparent intention so to do, has excepted the appellant from the provisions of any uniform rate of fare to be charged within -the city of Buffalo and has given to the appellant the right, without any apparent intention, to fix for itself such fare as to it should seem proper within the city of Buffalo, without being subjected to any penalty for excessive fares or overcharges, leaving the aggrieved passenger to his' remedy by action to recover the excess and such damage as he could prove. It is true that the city of Buffalo might claim to rescind the agreement for a violation of its terms; but we are dealing with the rights of passengers, individuals who may or may not be citizens of Buffalo.

We cannot agree that the Legislature ever intended to make this exception, nor do we find anything which tends toward such a conclusion.

We are supported in this view by the case of Crandall v. International R. Co., 133 App. Div. 857, where the court said: Under the so-called Milburn agreement a passenger upon the street railroads in the city of Buffalo is entitled to' a continuous trip between any two points by the most direct route, for a single fare of five cents,” and also by the case of McCarthy v. International R. Co., 126 App. Div. 182, where (at p. 183) the court said: “ The plaintiff was entitled to ride upon the second line upon- a- proper transfer, so as to pay but one fare on both lines. He was overcharged the second fare by reason of the transfer being improperly punched by the first conductor.”

Both of these decisions seem to recognize the right of the plaintiff to ride upon the second line and both hold that the plaintiff was overcharged, which in its particular effect places upon the street railway company a duty and obligation to carry a passenger for the single fare on a continuous trip over the most direct route between any two points in the city of Buffalo, even though such carriage requires the issuance of a transfer.

If, as it appears, therefore, it is the duty of the appellant under the statutes of Hew York and the so-called Milburn Agreement to carry the respondent upon its -lines between two points in the city of Buffalo on a continuous trip over the most direct route for the single fare of five cents, the cause of action alleged in' the respondent’s complaint must be regarded as good and sufficient for the purposes of this motion, although a different result might be reached" after trial on the merits.

For the "reasons stated, therefore, the order of the City Court of Buffalo is affirmed, with costs to the respondent; and the case will proceed to trial in the City • Court of Buffalo.

Order affirmed, with costs to respondent.  