
    WILLIAM PALM, Appellant v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Respondent.
    
      Action to recover a penalty o/$50 together with excess of fare charged under chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.
    The court below held that the facts in the case did not show any violation, of the provisions,of the acts in question, nor that the penalty therein provided had been incurred, or that the defendant had been brought within the terms of the statutes, and the complaint was dismissed, and on appeal the decision and judgment was affirmed. The facts and conclusions in the case, fully appear from the opinion of the court and the points of counsel.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal from a judgment entered upon the decision of the court at special term without a jury.
    This is an appeal from a judgment entered upon a decision of Judge Dugro, rendered after a trial before him without a jury.
    The action was brought to recover a penalty of fifty dollars incurred by the defendant under the provisions of the act entitled, “ An Act to prevent extortion by railroad companies,” Chap. 185 of the Laws of 1857, as amended by Chap. 415 of the Laws of 1886, together with the excess of fare charged, amounting to fourteen cents.
    The act is as follows :
    | 1. Any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same, but it shall be lawful, and not construed as extortion, for any railroad company to take the legal rate of fare for one mile for any fractional distance less that a mile; and every action brought to recover said fifty dollars and excess of fare shall be brought within one year after the accruing of the cause of action. But it shall be a defence in any such action if the railroad company shall show to the satisfaction of the court that such overcharge shall have been made through inadvertence or mistake not amounting to gross negligence.
    On a previous trial of this action before Judge Truax: without a jury a decision was rendered in favor of the plaintiff. On appeal to the general term the court held that it was incumbent on plaintiff to show the actual and due formation of the corporation (the Harlem and Portchester Railroad Company) under and pursuant to the General Railroad Act, and for that reason a new trial should be had. The opinion of the court is reported in 58 N. Y. Superior (26 J. & S.) R., 502.
    
      R. J. Shadbolt, attorney, and E. M. Wight of counsel, for appellant, argued :—
    I. The court’s disposition of this case on the ground set forth in the opinion leaves hut a single question for discussion. On the former trial and appeal this point was argued, defendant’s counsel saying: “ They (meaning defendant) owned the land as a private individual might own it, and it requires no special authority for a private individual to build upon his own land railroad tracks and run cars thereon for the convenience of his guests or patrons. There is nothing contrary to public policy in his doing so.” The counsel further said: “ Clearly there is no limit to the rate which a person may he permitted to pay for facilities, conveniences and transportation off the road/’ This broad claim for immunity from the operation of the law the defendant is compelled to make ; and yet there is no foundation for its application of this case. The Harlem River and Portchester R. R. Co. and the defendant, as its lessee, are not private individuals, but railroad corporations—common carriers. Their power to acquire and hold this land is derived from their charters, and because of the power and authority of their corporate character they built the railroad and this spur; and it is admitted that the spur was built by the defendant upon the «defendant’s land. It was paid for by defendant. The defendant. built platforms and made it a terminal point. The defendant regulated the time and manner in which the passengers should be transported to this point and the compensation to be paid. The defendant sold the ticket at a place provided by its officers, and the ticket sold evidenced a- right of passengers, and a right of passage only, from Harlem river to the race-course and return ; and the defendant asked and received the sum of fifty cents from the plaintiff for such passage. The defendant then carried this passenger in its cars and by its engines—specially provided, they say—from Harlem river to race-course and return.
    II. It was within the defendant’s power and right as a railroad corporation to build this spur, (a.) The land was theirs. The Harlem River and Portchester Company had the right to acquire it under § 7 of chap. 703, Laws of 1866, and it also had the right to take and hold it under the General Railroad Act. They acquired it by purchase, and it passed to the defendant under the lease, (b.) The Harlem River and Portchester Railroad Company and defendant as its lessee had the right to change the route, or any part of the route, or the termini of their road, as they wished. § 23, It. R. Act 1850, as amended, chap. 634, Laws of 1886. (c.) This spur was contrary to no law, and irrespective of the statutory rights aforesaid, its building was an incident to the powers of this corporation, which could be rightfully exercised. Greerís Brice, pp. 40-87, Redfield on Railways, chap. 15, § 105.
    HI. If, however, it were possible to say that this spur, built by defendant on defendant’s land, is not a lawful work and in any sense ultra vires, it would seem that the defendant could not lawfully charge fare for transportation over it. The power to demand fare, i. e., compensation, for transportation- of passengers on a railroad is not an implied or incidental power, but is derived from statute, and can be exercised only under authority of the statute. The right to carry passengers at all comes from the statute, and the right to the price comes from the same source. So jealously does the legislature guard the charges of railroad corporations that special acts have been sought and granted by the legislature to enable railroad companies to charge for special privileges or extraordinary burdens, e. g., Sleeping Cars, ch. 125, Laws 1858; Extraordinary Elevations, ch. 536, Laws 1887; Excess Fares, ch. 38, Laws 1889.
    IV. If then, the court below was not right in sustaining this claim, it erréd in all of its refusals to find as requested by the • plaintiff, and also in the findings for plaintiff which are excepted to. Chase v. N. Y. Central, 26 N. Y., 523; Fisher v. N. Y. Central, etc., 46 Ib., 644; Johnson v. Hudson R. R. R. Co., 2 Sweeny, 298, reversed in 49 N. Y., 455, on the ground that the statute does not apply; Milnor v. N. Y., N. H. & H. R. R. Co., 53 N. Y., 363; also, the following opinion of Judge Tbuax on former trial, viz.: “ Truax, J.—The defendant is operating that portion of the Harlem River and Portchester Railroad, between the station at the Harlem river and New Rochelle under a lease. My attention has not been called to any special act that authorizes the defendant to operate said Harlem River and Portcliester Railroad, but the lease to the defendant is authorized by chapter 218 of the Laws of 1839, which declares that it is lawful for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same as may be prescribed in such contract. The act further provided that nothing in it contained shall authorize the road of any railroad corporation to be used by any other railroad corporation in a manner inconsistent with the provisions of the charter of the corporation whose railroad is to be used under said contract.’ The Court of Appeals has held that under the statute the road to which the lease is made has a right to collect the fare for transportation authorized by the charter of the railroad that makes the lease. Fisher v. The N. Y. C. & H. R. R. R. Co., 46 N. Y., 653. It therefore becomes necessary to see what rate of fare for transportation the Harlem River and Portchester R. R. Co. had a right to charge under its charter. That road was organized under chap. 763 of the Laws of 1866, as amended by chap. 722 of the Laws of 1869. There is nothing in either one of these acts fixing the rate of transportation on the Harlem River and Portchester Railroad Company, and therefore it comes within subdivision 9 of § 28 of chap. 145 of the Laws of 1850, which gives to railroad corporations the power to regulate the compensation to be paid them for transportation of passengers at not to exceed three cents per mile. Johnson v. H. R. R. R. Co., 49 N. Y., 459. And under the rule laid down in the Fisher case the defendant can charge no greater rate than the rate that the Harlem River and Portchester R. R. Co. has a right to charge, that is, three- cents a mile. But the defendant contends that because it furnished certain conveniences to passengers it has the right to charge for such conveniences. The passenger paid his fare and received in return therefor a ticket entitling him to ride from the station at the Harlem river to the station at the race track. Moreover, these conveniences are as much for the convenience of the defendant as they were for the convenience of the plaintiff. They enabled the defendant to carry a much larger number of passengers, and therefore to earn a much larger sum of money than it was able to earn by using the regular station. By the statute under which the Harlem River and Portchester R. R. Co. was organized, it was authorized to construct, maintain and operate a railroad with all necessary depots, buildings, apparatus and fixtures, and to take and appropriate private property for the construction of the said road (§ 1, chap. 763, Laws 1866). The conveniences furnished are necessary depots, buildings, apparatus and fixtures,’ and by § 18, chap. 140 of the Laws of 1850, are deemed to be acquired for public use.’ Judgment is ordered for plaintiff for fifty dollars and fourteen cents ($50.14) with costs.”
    
      Page & Taft, attorneys, and John E. Parsons of counsel, for respondent, argued:
    I. The claim is that the defendant is guilty of extortion. The act upon which the claim is based rests upon the provisions of a penal statute. In such a case the rule is well settled that all doubtful points are to he considered in favor of the defendant. To recover, the plaintiff must show a fair right to the penalty. He must bring himself strictly and literally within the operation of the statute. Palm v. N. Y., N. H. & H. R. R. Co., 58 N. Y. Sup. Ct. Rep., 502. The established rule of construction is, that penal statutes are to he construed strictly. Van Valkenburgh v. Torrey, 7 Cow., 252. The statute declared that the owner of every horse used for racing, with his priority or permission on bet, should forfeit the value of the horse. Held, that keeping a horse for and allowing him to he used in trotting on "a bet, was not within the section of the statute. Hall v. Sigel, 13 Abb. N. S., 178. An action can be maintained to make trustees individually liable for debts of a social organization when brought within a year after debt is due and payable. In the case below the original claim was put in suit, and the judgment recovered was assigned to plaintiff, who brought suit against defendants, but after the expiration of a year. The court held that plaintiff could not recover. “ The statute is in the nature of' a penal one, and this construction is in accordance with the maxim that the general words of a penal statute shall be restrained for the benefit of him against whom it is inflicted. Seward v. Beach, 29 Barb., 239; affirmed, 53 N. Y., 697. The legislature passed a law imposing certain restrictions on the transportion of certain classes of - articles over highways, imposing a penalty of twenty dollars for offences against it; “ one half to the complainant, and the other half to the county treasurer of Dutchess, for the benefit of the poor fund,” * * without saying’ who should sue and bring the action for the penalty. The court said: “ James A. Seward, the plaintiff, brings this action to recover five of the penalties imposed by the act, and he is bound to show some authority for bringing the action. Concede that the act has been broken, and the penalties incurred. By what right does James A. Seward institute and maintain this suit ? The law must be so construed as to give it effect, if possible, and at the same time it must be construed strictly, for it is a penal statute.” (1.) The plaintiff may not argue that the use of the spur for a railroad is not warranted by law and that for the convenience which its use and the use of the tunnel and other conveniences affords, he is not compelled to pay; that is not the question. His right depends first upon the inquiry whether for transportation over the defendant's road he has just been charged more than three cents a mile. Clearly there is no limit to the rate which a person may be permitted to pay for facilities, conveniences and transportation off the road. For the sake of discussion it may he conceded that the defendant had no right to operate a railroad over the spur. It is no part of the defendant’s own road. It is no part of the route of the Harlem River and Portehester Railroad. The defendant for operating it may he exposed to any penalties or liability prescribed for failure to comply with the requirements with reference to locating its route or for operating a railroad outside of its route. It may be unable to exercise the fight of eminent domain. All this is foreign to the question. To establish his case it was necessary for the plaintiff to make out that for transportation he was charged more than three cents a mile, and that the charge was made for transportation over the defendant’s railroad. The question is not even, whether, on the facts, he was entitled to recover. Judgment having been given against him, he is limited to the allegations contained in his complaint. It is well settled that to claim error in such case there must he an amendment of the complaint and that, in the absence of such an amendment, the court must adhere to the case made by the complaint. Day v. Town of New York, 107 N. Y., 148; Pope v. Terre Haute Car Mfg. Co., 107 Ib., 61; King v. McKellar, 94 Ib., 317; Southwick v. First Nat’l Bank of Memphis, 84 Ib., 420. There is no suggestion in the plaintiff’s complaint that the railroad between the Harlem river and Morris Park belongs to the Harlem River and Portehester Railroad Company, the defendant being the lessee. The complaint alleges that it was the defendant’s railroad over which he was transported. He wholly failed to make out his case. (2.) If it were granted that the Harlem River and Portehester Railroad did belong to the' defendant, the spur and the tunnel and the facilities which they provided for reaching Morris Park were off the road. For charging passengers for such facilities, the defendant did not become exposed to the claim that it was guilty of extortion. The station of the Harlem Biver and Portchester Railroad is at Yan Nest. During the race meetings as at other times the regular trains of the defendant were run to and from V an Nest. Upon those trains regular rates of fare were charged; they were less than three cents a mile. To reach the race-course from Van Nest station passengers were required to walk on an uncovered way. The spur and tunnel and other facilities referred to enabled them to pass from the line of the railroad under cover. The land upon which the spur is established was owned by the Harlem River and Portchester Company; it was not acquired for railroad purposes. The spur, track and the tunnel and other facilities were used for the sole purpose of accommodating passengers by the special trains to the race-course and only at the time when race meetings were held. The Act of 1846, section 4, and the General Railroad Act apply only to transportation over a railroad. This obviously has reference to transportation from station to station of the road itself. Morris Park is not, within the meaning of the statute, a station on the road. Suppose that the defendant sold a ticket at three cents a mile for transportation with an extra charge which entitled the passenger to be conveyed in a carriage or other conveyance from the station to the race-course. Surely the statute referred to would not impose the penalty. Take another case, that of an invalid passenger reaching the Grand Central Station in New York. May not the defendant provide an invalid’s chair, and for its use receive compensation? The point is hot whether, if a passenger who did not pay the extra charge used the invalid’s chair, the restaurant, the carriage or the elevator, the company could compel payment. In the cases supposed, as in this case, the passenger has found it to his interest to pay the extra charge; the company has been at the expense of the special conveniences and facilities. It is submitted that Judge Dugro did not err in holding that the extra payment did not constitute extortion, and that, it being impossible to say what proportion of the fifty cents was applicable to transportation, it was impossible to say that the legal rate was exceeded. Suppose, again, that a grand stand stood on the line of the spur. Can there be doubt that the company would be permitted to charge for the transportation with the right to use the grand stand at a rate in excess of three cents a mile ? In principle there is no difference between the use of a grand stand placed upon the spur and the use of the other advantages which the spur provides. It means to the public the prevention of confusion, great saving of time and greatly increased facility for visiting the races. All of these conditions are outside of transportation. To determine that for them compensation may not be received is to forbid a railroad company to furnish for the convenience of its passengers anything beyond mere transportation. It would prohibit the ownership of a hotel, or, as has been suggested, a restaurant, etc. It is neither within the policy nor within the letter of the law that this should be done. The extra charge is distinct from the charge for transportation. Every passenger is given the option of traveling on the road at the legal rate or purchasing for a consideration additional facilities or conveniences in addition to the ordinary transportation. The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case :
    II. Grant, however, that the spur, tunnel and all the other facilities referred to are to be treated as part of the railroad, and yet the plaintiff cannot recover. Judge Dugro was right in his decision, that the spur was not operated under or by virtue of any provision of law which directly or indirectly made applicable to it any fixed rate of fare as that allowed by law. (1.) The defendant in respect of the Harlem River and Port-Chester Railroad is not limited to the three cents a mile mentioned in section 4 of the Act of May 11, 1846, authorizing the defendant to extend its railroad from the Connecticut line to the New York and Harlem Railroad at or near Williamsbridge, in Westchester county. It does not operate the road in question under the provisions of that act. The route of the Harlem River and Portchester Railroad lies wholly to the eastward of the railroad provided for in that act. The Act of 1846, section 1, prescribes the route by which the defendant is permitted to construct its railroad from the Connecticut state line to Williamsbridge. Section 4 provides that the defendant may construct a railroad between the points mentioned and “ fix, regulate and receive charges by them to be received for the transportation of persons and property on the said road; provided always, that such charges for 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. The act prescribes no penalty for violation of this provision. (2.) The only other statutory regulation claimed by the plaintiff to be applicable, fixing or limiting the compensation which railroads in this state may receive for transporting passengers is contained in subdivision 9 of section 28 of the General Railroad Act (Laws of 1850, ch. 140). The section provides: “ Every corporation formed under this act shall * * * have power * * * 9. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor. But such compensation for any passenger and his ordinary baggage shall not exceed three cents per mile.” * * This provision does not apply to the defendant. It is not a corporation formed under the Act of 1850. Here, again, it is suitable to draw the attention of the court to the consideration that it is not a question whether the defendant comes within the policy of the General Railroad Law, or whether the provisions of that law should have been made applicable to the defendant. Where the language of a statute is clear, its provisions cannot be enlarged, upon the claim that the legislature must have intended or ought to have intended something more, or something different. The sole inquiry is what has the legislature said. Potter’s Dwaris on Statutes, 193; McCluskey v. Cromwell, 11 N. Y., 593, 601; Purdy v. People, 4 Hill, 397; Waller v. Harris, 20 Wend., 561; People v. Supervisors of Greene, 13 Abb. N. C., 421; Jackson v. Lewis, 17 Johns, 475; Waterford & W. T. Co. v. People, 9 Barb., 161; People v. N. Y. C. R. R. Co., 13 N. Y., 78. Chapter 185 of the Laws of 1857, to prevent extortion by railroad companies, as amended by chapter 415 of the Laws of 1886, imposes a penalty of $50 upon any railroad company which shall ask and receive a greater rate of fare than that allowed by law.” The burden was upon the plaintiff to show that the defendant came clearly and literally within the terms of this act. To do this he was at least called upon to establish clearly and literally that in respect of the Harlem River and Portchester Railroad the defendant was limited to a transportation charge of three cents a mile. He failed. (3.) The defendant is not liable on the assumption that it occupies the same situation as its lessor. The penalty is personal. It is imposed upon the particular railroad company which, having violated the law, has become exposed to the liability. The acts of the legislature (chapters 218 of Laws of 1839 5 302 of the Laws of 1855 ; 254 of the Laws of 1867 ; 844 of the Laws of 1869) by which the defendant was permitted to become lessee of the Harlem River and Portchester Railroad do not impose upon the lessee liability for penalties which might be applicable to the lessor. There being no limitation of the rate for transportation applicable to the defendant except in respect of its main line, it is subject to no such limitation as lessee of the Harlem River and Portchester Railroad upon the claim that that company, if it operated its own road, would be exposed to the penalty.
   By the Court.—McAdam, J.

The New York, New Haven and Hartford Railroad Company was incorporated under the laws of Connecticut. The road was extended into this state by permission given by an act of the legislature (Laws of 1846, ch. 195). By section 4 of that act it was provided that the charge for the transportation of passengers should not exceed three cents per mile within this state.

By an act passed in 1866, as amended in 1869, the Harlem River and Portchester Railroad Company was incorporated for the construction of a railroad from the Harlem River to New Rochelle in the state of New York. That road was built, and runs along on the east side of the New York, New Haven and Hartford Road, and several years ago was leased to the N. Y., N. H. & Hartford R. R. Co., and has been used and operated by that company ever since.

Between the Harlem River and New Rochelle is a station called Van Nest, and about half a mile off from that station is the Morris Park race-course, and when the races were had large numbers of people went there, more than could be carried on the regular trains, and getting off at the station they were compelled to walk about half a mile to the race track. The Harlem River and Portchester Railroad Company OAvned the land on which the race track was laid, and also the land between that and the railroad, although it was not used for railroad purposes. In 1889, for the purpose of taking passengers from the station to the race-course, the defendant built a spur or branch road from the station at Van Nest to the race grounds, and has ever since, on the days of the races, run special trains from the Harlem River to the race track on this spur or branch road after leaving the railroad at Yan Nest, taking the passengers right on the grounds, issuing and selling tickets stamped “ R. C. & H. R.,” meaning Race-Course and Harlem River,” and charging fifty cents for the round trip or excursion, the distance being between five and six miles each way.

By the General Railroad Act (ch. 140 of the Laws of 1850) under which the Harlem River and Portchester Railroad Company was organized, the compensation to be charged or received by corporations formed thereunder for transporting passengers is limited to three cents a mile, and by chapter 185 of the Laws of 1857, as amended in 1866, it was enacted that if any railroad company shall ask or receive a greater rate of fare than is allowed by law, it shall forfeit fifty dollars in addition to the excess of fare paid, to be recovered by the party paying the same.

On the 20th of August, 1889, the plaintiff bought such a ticket and paid fifty cents for it, and with it, or under it, as stated in the case (Pol. 81), he rode from the Harlem River station in New York to and from the race-course on a special train, and then brought this suit to recover fourteen cents, the excess over three cents per mile, and a fifty-dollar penalty; and the question now is whether the railroad company has incurred the penalty by charging or receiving fifty cents for that excursion ticket. The spur or track built from the race grounds to Yan Nest station is not a part of the fine or route of the Harlem River & Portchester Railroad, but is a track built only for use on the days of the races, to take people from the station to and from the racecourse, by cars running to take people going to and from the race grounds only. Passengers going from the Harlem River station to the Yan Nest station were charged but three cents a mile, but people who wished to go to a place off from the line of the road were charged a little more. The company' might have run a line of stages from the station to the race-course, in which case it will not be pretended that it would be limited in its charges to three cents a mile, or that the act of the legislature, fixing the rate of fare on railroads constructed under that act, would govern. Does the fact that the railroad company made a railroad track over that piece of ground, so that cars could be switched off on it from the line of the railroad, and the passengers so carried to the race ground, make it any different ? If a separate short railroad had been built from Van Nest station to the race-course, not connected by a switch with the track of the railroad, and the passengers had been carried across by a shuttle train, it would not then have been a part of the Harlem River and Portchester Railroad, nor a road formed under the provisions of the General Railroad Act, nor would section 28 of that act have any application; and in our opinion it has no more application as it is.

The title and right of way must be acquired, and a survey and map of the route and line of a railroad incorporated under the General Railroad Act must always be made and filed. If these prehminaries are not complied with, or these proceedings are not had, it is not a railroad constructed under that act; and if it is not a railroad constructed under that act, sub. 9 of § 28 of that act does not fix the rate of fare ; for that section, by its express terms, fixes the rate of fare only on railroads constructed under that act. If then, as appears to be the case, this spur or branch road from Van Nest station to the race-course was not constructed under the General Railroad Act, and is not a part of the Harlem River and Portchester Railroad, but an independent or temporary structure, which may be used or not at the option of its builders, and may be abandoned at any time, there is no law limiting the price the defendant may charge or receive for carrying passengers upon it. At least there is no law making it penal, or giving to the plaintiff the penalty sued for in this case. It may be an unlawful structure, or an unauthorized railroad, but that fact would not give the plaintiff a right of action. It might give the state, through the attorney-general, the right to compel a discontinuance of the use of the spur or branch, as unlawful, but as no such course has been taken, the discussion of that question becomes unnecessary. The state certainly could not compel the defendant to run its trains to Morris Park race-course, for the simple reason that it was not a station on its road, nor indicated on any map or survey thereof, nor could the state for non-user of the spur or branch have forfeited the charter of the road or deprived it of any of its corporate franchises. This is one effect of the spur or branch not being within any of the provisions of the acts authorizing railways, and another is the inability of a passenger voluntarily availing himself of the special accommodations of the spur or branch recovering any penalty under such acts for compensation exacted for the extra privileges afforded.

The private spur or branch was used at the will of the defendant, as a private enterprise and only on occasions when it thought proper, and it is not subject to any of the acts regulating authorized railways, that are available to the plaintiff.

Every passenger is given the option of traveling on the road at the legal rate or purchasing for a consideration additional facilities or conveniences in addition to the ordinary transportation.

The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case.

The transportation of passengers over a half mile on private track off the line of the defendant’s railroad is, therefore, as foreign to the ordinary transportation business of the company as the furnishing of meals or seats in a grand stand, or the carrying in elevators or carriages. The land on which the six tracks were built might have been converted into a private road on which to carry passengers from Yan Nest station to the racecourse. The defendant preferred the more convenient arrangement of building a spur track. To do this, it is claimed, needed no statutory authority.

The defendant owned the land as a private individual might own it, and it is urged that it requires no special statutory authority for a private individual to build upon his own land railroad tracks, and run cars thereon for the convenience of his guests or patrons. That there is nothing contrary to public policy in his doing so. We do not feel called upon to decide this proposition in the present case, but if it be as argued, such a railroad needs no franchise or power from the state, the owner may operate it to suit himself and he will not be subject to the regulations and restrictions contained in the General Railroad Act. The defendant could have leased or sold this land to the owner of Morris Park, and he probably might have run the cars on the tracks without organizing a railroad company, or being forced to ask for and receive any power or aid from the state. Pie certainly would not have been subject to the provisions of the General Railroad Act, and it is urged with force that the defendant is not in a worse position.

It is entirely clear that this outside track was never intended to be a railroad under the statute conferring corporate rights, or imposing corporate obligations or liabilities, but was intended to be, and is, a temporary structure to be occasionally used for the convenience of persons desiring to go to a place off from the railroad, and to be discontinued or abandoned at any time at the pleasure of the builders.

If that branch or strip of road is not a part of the Harlem and Portchester Railroad, or was not constructed under or in pursuance of the General Railroad Act, and the charge in excess of three cents a mile was for transportation over that strip or branch road, the plaintiff is not entitled to recover that excess nor the penalty. Penal statutes must be strictly construed, and to recover a penalty a plaintiff must always make a plain case, and bring his claim within the very letter of the statutes. Hall v. Sigel, 13 Abb. N. S., 178; affd. 53 N. Y., 607; Seward v. Beach, 29 Barb., 239; Millered v. L. O. A. & N. Y. Railroad Co., 9 How., 238; Verona C. C. Co. v. Murtaugh 50 N. Y., 314; Wood v. Erie Railway Co., 72 N. Y., 198; Bonnell v. Griswold, 80 Ib., 128; Potter’s Dwaris Statutes, 243.

The court in this case has found that the sum over three cents per mile was for or because of transportation over that outside track, and the evidence warrants that conclusion. All the company charges for any distance on the line of the railroad is three cents per mile or less, and passengers on the road stopping at Van Nest station are required to pay but three cents per mile; but when, as in this case, a passenger asks to be carried from the station to a place off from the line of the road, and where the company is not obliged to take him, there does not appear to be any law forbidding the company charging' an extra compensation.

The court has found that the facts do not show any violation of the provision of Sec. 4 of chapter 195, of the Laws of 1846. That is true, for the reason, among others, that that law has no application to this case. It is not for carrying the plaintiff over that road, or any railroad incorporated under that Act, that the plaintiff paid the fare in question in this case. The road in question is the Harlem River and Portchester Railroad, incorporated under another and a different Act, and which the defendant is running as lessee.

The court also finds that the proof does not show any violation of subdivision 9 of section 28 of the General Railroad Act, chapter 140 of the Laws of 1850 (Fol. 165), and this presents the whole question.

If the views before expressed are correct, that the branch road from Van Nest Station to the race track is not a railroad constructed under the General Railroad Act, then this finding is correct, and the plaintiff to recover was bound to show that it was, or at least that it was constructed under some act of the legislature limiting the rate of fare to be charged to passengers carried over it, to less than the sum charged in this case, which he has failed to do.

All presumptions must be in support of a judgment, and if the statutes and the evidence in this case will bear a construction that will sustain the judgment, that construction must be given them. If the defendant was not limited by the statute, in its charges for transporting persons over that branch track, then it must be presumed that the excess over three cents per mile (the fourteen cents) was charged and received for that extra service. Besides, as the case does not show that it contains all the evidence, if there is any lacking, or not printed in the case, necessary to support the findings (although there does not appear to be) the court must presume it was given. Porter v. Smith, 107 N. Y., 531; Aldridge v. Aldridge, 120 Ib., 614.

Where there is an exception to a finding of fact on the ground that there is no evidence whatever to sustain ■the finding, it is not necessary, in order to raise that legal question, that the case contains all the evidence. Hopkins v. Phenix Ins. Co., 118 N. Y., 165. But that is not this case. The plaintiff in this case, if he claimed or wanted a finding, that the spur or track from Van Nest station to the race-course was a part of the Harlem River and Portchester Railroad, should have requested such a finding. Patterson v. Robinson, 116 N. Y., 198, 199. He did not do so, nor did he, as it looks to us, request any findings. He drew up a draft of a decision, which, however, the judge treated as requests to find, but did not adopt.

The court has not found, nor has it been proved, that there is any such station as Mount Morris Park on the line of the Harlem River and Portchester Railroad, nor that the distance that the plaintiff was carried on that railroad was less than six miles, nor that the entire charge of fifty cents was for travel on that railroad; but does find that the charge was for transportation from 134th street to Morris Park and return. (Fols. 142, 143, 144,157, 158, 159, 160, 161, 162.)

All the findings of fact that the judge did make are supported by evidence, and the second legal question (Fol. 165), on which the whole case rests, is supported by the evidence on the part of the defendant before alluded to, and by the failure of the plaintiff to prove that the burden was on him to show, to entitle himself to recover a penalty.

It follows that the judgment appealed from must be affirmed with costs.

Freedman, P. J., and Gildersleeve J., concurred.  