
    Edward G. Hogan, Appellant, v. The Long Island Railroad Company, Respondent.
    Second Department,
    December 30, 1910.
    Railroad — excess fare — slip redeemable at ticket office.
    A railroad which exacts more than the lawful rate of fare for a passage wholly within the city of New York is liable for the penalty prescribed by section 39 of the Railroad Law, although it gives the passenger a slip for the excess fare redeemable at any of its ticket offices.
    The overcharge is "fare” within the meaning of the statute, although the amount was repayable to the passenger upon presentation of the slip. Hirschberg, P. J., and JenkS, J., dissented.
    Appeal by the plaintiff, Edward G. Hogan, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 20th day of June, 1910.
    
      A. F. Van Thun, Jr., for the appellant.
    
      Dominic B. Griffin, for the respondent.
   Thomas, J.:

The plaintiff, a passenger in defendant’s car, paid, therein fare, although there was full provision for securing a ticket at the initial station. The passage was wholly within the city of New York; the usual fare v/as twenty cents; the maximum legal fare was twenty-seven cents; the fare exacted and received was thirty cents. This abtion is to recover the penalty for asking and receiving more than the lawful rate of fare. (Railroad Law, § 39.) Chapter 38 of the Laws of 1889 (now Railroad Law [Consol. Laws, chap. 49 ; Laws of 1910, chap. 481], § 58), allowing an excess fare of ten cents to be taken, “ except where such passage is wholly within the limits of any incorporated city,” does not aid the defendant. Then what protection has it ? Its excusatory plea is that the excess was not received as fare, inasmuch as it was rejiayable at any ticket office of the defendant upon presentation of the slip given to the passenger. But in view of chapter 38 of the Laws of 1889 the carrier could not take excess fare from- a passenger even for temporary detention, even though it placed upon him the burden and extended to him the privilege of recovering it. But was it fare ? If not, what was it ? Certainly not money that it extorted under no pretense of right. ' But the right to take asserted was that of receiving fare, and in the course of exercising such right it demanded and received the excess sum. It demanded as fare thirty cents; it received as fare thirty cents; it thereupon gave the passenger a paper promising to repay ten cents upon presentation of the paper. What did it promise to repay, if not a portion of the fare exacted % . Had it by menace or duress procured a sum of money from its passenger without any pretense 'of authority ? . In seeking to pervert the true nature of its act,, it exposes itself to more serious accusation. But the plain fact is that it asked for the sum as fare and received it as such, and violated section 39, and its promise to. pay back the excess does not dispel the guise under which it was received.

The judgment should be reversed and a new trial ordered, costs to abide the event.

. Woodwabd and Rich, JJ., concurred; Hirschberg, P. J., and Jenks, J., voted to affirm on the opinion of Bogenshutz, Municipal Court Justice;. Jenks, J.,being also of opinion that the statutes do not' apply, inasmuch as the territory was not wholly within the limits of any incorporated city within the purview of said statutes when enacted. Leave to appeal to the,Court of Appeals will be granted if the respondent is so advised.

Judgment of the Municipal Court reversed and new trial ordered, ■ costs to abide the event. 
      
       See Gen. Laws, chap. 39 (Laws of 1890, chap. 565), § 39; Consol. Laws, chap. 49 (Laws of 1910, chap. 481), § 59.—[Rep.
     