
    Luke O’Reilly, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Lease of one street surface railway company by another — duty of the lessee to give transfers — statutory construction favorable to the public.
    
    In 1893 the Brooklyn Heights Railroad Company leased the Crosstown line of the Brooklyn City Railroad Company, and in 1900 it leased the Vanderbilt Avenue line of the Nassau Electric Railway Company, which intersected the Crosstown line. These leases were made under the authority of section 78 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, which provides: “ Any railroad corporation or any corporation owning or operating any railroad or railroad route within this State, may contract with any other such corporation for the use of their respective roads or routes, or any part thereof, and thereafter use the same in such manner and for such time as may be prescribed in such contract.”
    Section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, provides: “Every such corporation entering into such contract shall carry or permit any other party thereto to 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 not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation 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 * * *. Eor every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party.”
    
      Held, that the words, “Every such corporation entering into such contract,’ contained in section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, referred to the contract authorized by section 78 of that statute;
    That, in the event of the refusal of the Brooklyn Heights Railroad Company to give to a person who took passage on the Vanderbilt Avenue line of the Nassau Electric Railway Company with the intention of making a continuous trip to a point on the Crosstown line of the Brooklyn City Railroad Company, a transfer entitling him to transportation over the Crosstown line without additional fare, it became liable for the penalty prescribed by section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892;
    That it was not material that the Cross town line of the Brooklyn City Railroad Company and the Vanderbilt Avenue line of the Nassau Electric Railway Company were not leased to the Brooklyn Heights Railroad Company under the same lease;
    That the Crosstown line of the Brooklyn City Railroad Company was within the meaning of the statute embraced in the contract with the Nassau Electric Railway Company as a part of the system operated by the Brooklyn Heights Railroad Company;
    That to entitle a passenger to the benefits of section 104 of the Bailroad Law it is not essential that his trip shall be begun upon the lines of the Brooklyn Heights Bailroad Company to be completed upon one of the leased lines; r
    
    That a corporation accepting the beneficial provisions of a statute is bound to assume the duties and obligations imposed upon it by such statute;
    That where two constructions of a statute are permissible that construction should be adopted which is more favorable to the public or to the State.
    
      Semble, that chapter 305 of the Laws of 1885, and chapter 565 of the Laws of 1890, and chapter 676 of the Laws of 1892, beipg in pari materia, must for the purpose of construction be read together.
    , Appeal by the defendant, The Brooklyn Heights Railroad Com- . pany, from a. judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 8th day of March, 1904.
    Section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, which is referred to in the opinion, provides as follows: “ Every such corporation entering into such contract shall carry or permit any other party thereto to 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, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation 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 ás a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party. The provisions off this section shall only apply to railroads wholly within the limits of any one incorporated city or village.”
    
      Charles A. Collin, for the appellant.
    
      Louis Ehrenberg, for the respondent.
   Woodward, J.:

The plaintiff, on the 8th day of December, 1903, was a passenger on a north-bound car on the Vanderbilt avenue line of the Nassau Electric Railroad Company, desirous of making a continuous trip between his starting point on that line and his point of destination on the crosstown line of-the Brooklyn City Railroad Company. This continuous trip involved a change of cars at the intersection of the Vanderbilt avenue line of the Nassau Company and the crosstown line of the Brooklyn City Company. The plaintiff had paid his fare of five cents on the Vanderbilt avenue line, and demanded of the defendant, the Brooklyn Heights Railroad Company (which is operating both of the lines involved in the controversy under independent leases made in 1900 and .1893, respectively),' a transfer ticket entitling him to transportation over the crosstown line to his point of destination without additional fare. The defendant refused to give the plaintiff such a transfer ticket, and refused to carry him on the crosstown line without the payment of an additional fare of five cents, whereupon he brought this action to recover the penalty of fifty dollars for such refusal, under the provisions of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap. 676). The Municipal Court rendered judgment for the plaintiff, with costs, and this appeal on the part of the defendant brings up the question whether, as a matter of law, the defendant, under the facts of this case, is liable for the penalty provided by the statute.

The Brooklyn City Railroad Company and the Nassau Electric. Railroad Company were incorporated and operated their lines under charters which gave them no right to consolidate with other lines of railroad, except as provided by the Laws of 1884 and subsequent amendments. By the. provisions of section 15 of chapter 252 of the Laws of 1884 it was provided that “ it shall be lawful for any street surface railroad company or companies to lease, or to transfer its or their right, subject to all its or their obligations in respect thereof, to run upon or to use any portion of its or their railroad tracks to any other street surface railroad company authorized to run upon such route, upon such terms as may be agreed upon by a majority of the respective boards of directors thereof, subject to approval or rejection by a vote of a majority of the stock represented at meetings of the stockholders of each of such companies called for that purpose,” etc., the section being limited by its terms in cities of over 300,000 population to lines which were not parallel to the leasing line.

By the provisions of chapter 305 of the Laws of 1885 it was made lawful for any street surface railroad company or any corporation owning or operating a street surface railroad or railroad route to contract with any other such company or corporation for the use of their respective roads or routes or any portion thereof “ subject to the provisions, restrictions cmd conditions hereinafter stated, and thereafter to use or to permit the use of the same in such manner as may be prescribed in such contract.” In section 4 of this act it was provided that each and every company entering into any contract under the power conferred by this act shall carry or permit any other party to such contract to carry between any two points on the railroads or portions thereof embraced within such contract any passenger desiring to make one continuous trip between such points for one single fare not higher than the fare lawfully chargeable ■ by either of such companies for an adult passenger, and each and every such company 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 any portion of any railroad embraced within such contract to the end that the public convenience may be promoted by the operation of the railroads embraced within such contract to the extent of their inclusion therein substantially as a single railroad with a single rate of fare.” Then follows a provision for a penalty of fifty dollars for a refusal to grant such transfer, and the act is limited to cities having a pop-' ulation of 800,000 and over, and repeals all acts and parts of acts inconsistent therewith, which probably had the effect of superseding, substantially, the provisions of section 15 of chapter 252 of the Laws of 1884.

In 1890 chapter 252 of the Laws of 1884 was repealed by section 180 of the Railroad Law, which also repealed chapter 530 of the Laws of 1885, evidently intending- to repeal chapter 305 of the Laws of 1885, which was wipa/ri materia, while said chapter 530 was not, and chapter 565, known as the Railroad Law, was enacted. Section 103 of this law provided that “ any street surface railroad corporation or any corporation owning or operating any such railroad or railroad route in any city having a population of eight hundred thousand or more may contract with any other such corporation for the use of their respective roads or routes in such city,” etc. Section 104 provided for submitting this contract to the stockholders, etc., and sec-' tion 105 provided as follows: “ Every such corporation entering into such contract shall carry or permit any other party thereto to 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, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger, and every such corporation 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 ctintract substantially as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party.” It is clear, we think, that the language of section 105 of chapter 565 of the Laws of 1890, that “ every such' corporation entering into such contract,” refers back to the provisions of section 103 of the same act, that “ any street surface railroad corporation or any corporation owning or operating any such railroad or railroad route, * * *. may contract with any other such corporation for the use of their respective' roads,” etc. That is, in consideration of the privilege granted of contracting for the use of other lines, thus' producing a practical consolidation of the same, the State required that the lines so brought together under these contracts should carry passengers for one single fare between any two points upon the lines, “ 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.” There can be no mistaking the legislative intent here, and under the well-established rule that a corporation accepting the beneficial provisions of a statute is bound to assume the duties and obligations (Brooklyn & Rockaway Beach R. R. Co. v. L. I. R. R. Co., 72 App. Div. 496, 503, 504, and authorities there cited), there can be no doubt that, under the provisions of chapter 565 of the Laws of 1890 (supra), street surface railroad corporations or corporations owning or operating any street surface railroad or railroad route in the city of New York, contracting under the authority of this statute, were bound to carry passengers over the entire distance between any two points upon the lines embraced within the contract, and that the fair construction of thid language contemplated both the lessee and the lessor lines.

By the provisions of chapter 676 of the Laws of 1892 the Railroad Law underwent a substantial revision, many of the sections being shifted, and under article 4, as then amended, which relates particularly to street surface railroads, there is no provision for leasing or contracting between street surface railroad corporations,; but section 78, as amended by that act and by chapter 433 of the Laws of 1893, provides that any railroad corporation or any corporation owning or operating any railroad or railroad route ' within this State, may contract with any other such corporation for the use of their respective roads or routes, or any part thereof, and thereafter use the same in such manner and for such time as may be prescribed in such contract.” Section 80, as amended by the act of 1892, limits such railroad corporations, excepting street surface railroad corporations, in their power to contract for the úse of parallel or competing lines, while section 103, as amended by the act of 1892, permits any street surface railroad corporation which is the. lessee or lessor, or both, or which has the right to use the route or portion- of the route of another such corporation,” to abandon a portion of its lines whenever certain provisions of the statute shall be complied with. It seems entirely clear, in view of this evolution of the Railroad Law, that when section 104 of that statute, as renumbered from section 105 and amended by chapter 676 of the Laws of 1892 speaks of “ every such corporation entering, into such contract,” it refers to the contract authorized by section 78 of that statute, as amended in 1892 and 1893, under the authority of which the Brooklyn City railroad was leased to the Brooklyn Heights Railroad Company in 1893, and the Nassau Electric railroad was leased to the same operating company, this defendant, in the year 1900.

If we are correct in this view, there is no uncertainty in the language of section 104 of the Railroad Law as it now stands, the rule requiring us to give to it its natural and ordinary meaning. (Minor v. Erie R. R. Co., 171 N. Y. 566, 573.) The language of chapter 305 of the Laws of 1885, which does not appear to have been specifically repealed until 1892 (Gen. Corp. Law [Laws of 1892, chap. 687], § 34), and which undoubtedly only applied to the then city of New York, is most significant; it provides for making contracts between street surface railroad companies or corporations owning or operating street surface railroads or railroad routes and that “ each and every company entering into any contract under the power conferred by this act shall carry,” etc., and that “ each and every such company shall, upon demand and without extra charge, give to each passenger paying one single fare a transfer,” etc. The revisions of 1890 and of 1892 and the amendments thereto continuing these privileges of contracting between street surface railroad corporations or corporations owning or operating street surface railroads or ■ railroad routes, continue the obligation to issue transfers. It was not until the enactment of chapter 676 of the Laws of 1892 that there was any authority for the Brooklyn Heights Railroad Company to contract with the Brooklyn City Railroad Company or the Nassau Electric Railroad Company. The language of the law and its spirit required, as a condition of exercising the power to contract with other companies, that the lessee corporation should issue transfers so that passengers should be carried from one point to another upon the main or leased lines for one single fare. The act of 1885 and the subsequent acts of 1890 and 1892 are in pari materia and for the purposes of construction must be read together. (Blake v. Wheeler, 18 Hun, 496, 499, and authorities there cited.) With this view of the case it cannot be doubted that the Legislature intended to extend the privileges of street surface railroad corporations and corporations owning or operating street surface railroads, or railroad routes, and to impose as a condition that the corporations entering into the contracts thus permitted should consult the public convenience by permitting their passengers to travel over any portion of all of the involved lines necessary to reach their destination for one single fare, as though there was but a single road. The Brooklyn Heights Railroad Company has availed itself of this privilege ; the Brooklyn City Railroad Company and the Nassau Electric Railroad Company, which could not have acted prior to the enactment of chapter 676 of the Laws of 1892, have likewise availed themselves of this privilege. As the privilege was granted only-in connection with the, obligation.- to furnish transfers over all of the lines embraced in the contract, as the Brooklyn City Railroad Company was under contract and in effect a part of the Brooklyn Heights Railroad Company’s system at the time that the Nassau Electric Railroad Company entered into its contract with the Brooklyn Heights Railroad Company, it is difficult to understand why the latter should be relieved from responsibility in the present case. As the operating company the Brooklyn Heights Railroad Company had received the benefits of the privilege conferred by the statute and no good reason is suggested why it should not have discharged the obligations imposed, by the statute, as a condition of that privilege. The language of section 104 of the Railroad- Law as it now appears is that “ every such corporation entering into such contract shall carry,” etc. It is, the entering into the contract which carries with it the obligation to transfer, and the mere fact that the Brooklyn City Railroad Company and the Nassau Electric Railroad Company were not leased to the defendant under the same lease is of no importance ; it is the intent of' the Legislature which is the law, and it. cannot be doubted that the intent of this statute was that if the Brooklyn Heights Railroad Company contracted with the Brooklyn City Railroad Company for the use of its lines, the operating company became liable to carry passengers over both lines the same as though it was a single line of railroad. When this same company, controlling the Brooklyn City lines, likewise leased the Nassau Electric lines, it assumed the obligation of transferring passengers so that they might make a continuous trip between any two points upon the lines under the control of the Brooklyn Heights Railroad Company, for the purpose of. permitting these contracts was “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.” Clearly the Brooklyn City lines, as a part of the Brooklyn Heights system, were embraced in- the contract with the Nassau Electric Railroad Company within the meaning of this statute granting an important privilege to the leasing corporation. “By an equitable construction,”, says Matthew Bacon (Bac. Abr. Stat. I, 6), “a case not within the letter of a statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the law-maker could not set down every case in express terms. In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question, Did you intend to comprehend this case ? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this, be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” (See Riggs v. Palmer, 115 N. Y. 506, 510, 511.) Is there any reason for exempting the Brooklyn Heights Railroad Company, which has had all of the benefits of the privilege conferred of contracting with other companies, from the obligations accompanying that privilege ? Is there any reason to believe that the lawmakers, who gave the right to consolidate these lines under contracts which virtually absorb the lessor companies, intended anything less than that every company which undertook the operation of these various lines under one management should furnish transfers over all of the lines in its control, where such transfers were necessary to a continuous trip? It was the burden which was intended to go with the privilege, and this purpose ought not to be defeated because the plaintiff’s initial trip was upon the Nassau Electric line, to be completed upon the Brooklyn City line, instead of upon the Brooklyn Heights line, to be completed upon one or the other of the lessor roads. This would permit the defendant to enjoy the privileges of the statute without the reciprocal advantage to the public which was contemplated by the transfer provisions of the law, and under the rule which requires us of two constructions to adopt that which is most favorable to the public or the State (Minor v. Erie R. R. Co., 171 N. Y. 566, 573, and authority there cited), we see no escape from the conclusion that the plaintiff has established his cause of action under the provisions of section 104 of the Railroad Law.

The judgment appealed from should be affirmed, with costs.

All concurred ; Bartlett and Jenks, JJ., in result,

■Judgment of the Municipal Court affirmed, with costs.  