
    Arthur H. Hearn et al., Respondents, v. The Western Union Telegraph Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1901.)
    Transportation Corporations Law, L. 1890, ch. 566, § 103 — Penalty not enforcible for mere delay in transmitting a telegraphic despatch.
    Under the Transportation Corporations Law (L. 1000, ch. 566, § 103), a penal statute, imposing a penalty upon a telegraph company for its neglect or refusal to transmit despatches “ with impartiality and good faith and in the order in which they are received”, there can be no recovery against the company for its mere delay in transmitting a message to another State, and the fact that the sender paid extra to have it repeated to the sending office is not material.
    Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of New York, tenth district, borough of. Manhattan.
    Fearons & Taggart (Francis R. Stark, of counsel), for appellant.
    J. Delahunty, for respondents.
   Scott, J.

The plaintiffs sue to recover the statutory penalty of $100 provided for by section 103 of the Transportation Corporations Law (Laws of 1890, chap. 566), which reads as follows: Transmission of despatches. Every such corporation shall receive despatches from and for other telegraph and telephone lines or corporations and from or for any individual, and on payment of the usual charges by individuals for transmitting despatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith, and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such despatch and entitled to have the same so transmitted.” The evidence showed that on September 10, 1900, the plaintiff, Arthur II. Hearn, delivered' a message, signed by himself and the plaintiff Lizzie Bell Hearn, to the manager of an office of the defendant on Broadway near Fourteenth street, borough of Manhattan, and paid the customary charges for its transmission and fifty cents extra to have the message repeated. The message was addressed to a gentleman in Houston, Texas, notifying him that the senders were forwarding money by mail for the relief of certain supposed sufferers by the Texas floods. There had been a severe storm in Texas, and notices were posted in the telegraph office stating that messages for certain points in Texas (not including Houston) would be accepted only subject to delay. The message was not delivered to the person to whom it was addressed in Houston until the morning of the twelfth. The same person had received another telegram from New York on September eleventh, in answer to one sent by him on September tenth, but it did not appear when such message was sent from New York, or that it was delivered for transmission to the.same office of defendant as that to which plaintiffs’ message was delivered. As was clearly pointed out by this court in Wichelman v. Western Union Tel. Co., 30 Misc. Rep. 450, the statute which the plaintiffs invoke is penal and must be strictly construed, and its imposition is limited to acts of partiality, bad faith or preference in the order of transmission. If the defendant was guilty of a breach of its contract with plaintiffs, or was merely guilty of negligence in carrying out the contract, relief must be sought otherwise than under the terms of this section. In such an action as this, as in other actions, the plaintiffs must assume the burden of proving their case; that is, they must present some evidence of partiality, or bad faith, or preference in transmission. In the present case they have done neither. All they have shown is delay in the transmission. How that delay occurred, or whether in the State of Hew York or outside its boundaries, there is nothing to show. The fact that the plaintiffs paid to have the message repeated back and that it was not so repeated is not material. The statute does not apply to such a repetition, but merely to the sending of such a message. The motion to dismiss the complaint should have been granted.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

McAdam, P. J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  