
    John Snee, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    June 7, 1907.
    Railroad—refusal of transfer — action for ¡.penalty—liability for act of .... '• . ■ servant. • .
    A railroad, .although it has provided for the issue of transfers, is liable nevertheless under section 104 of the Railroad Law for. the act .of -its- conductor in .refusing to-issue transfers.
    When a transfer is refused the action for a penalty is governed by section 104 of the Railroad 'Law and not by section 39 which presciibes a penalty'for exacting unlawful 'rates of fare. '•
    Woodward,. J., dissented on opinion below.
    Appeal by the plaintiff, Jolin Snee, from a judgment of the County Cou-rt of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 18th day of April, 1906, and -also, from an order - entered in'said clerk’s office on "the 10th day of Hay, 1906, dismissing the complaint after a trial before tlie court and a jury. . ' - ,
    
      Alfred J. Gilchrist [Jacob Neu with him on the brief], for the appellant.
    
      I. R. Oeland and George D. Yeomans, for the respondent.
   Gaynor, J.:

. This action was brought to recover the penalty of'$§0 prescribed by section 104 of the Railroad Law for a refusal by .a street surface railroad company to deliver to a> passenger a transfer for a. continuous trip over its line and any connecting branch Operated -or controlled. by it: The plaintiff testified that at -the time- of paying his fare and afterwards he asked the conductor to give' him the transfer, and that the' conductor refused, giving ño explanation or reason. The complaint was dismissed oiji the ground that the defendant having 'provided for transfers, and: given its- conductors transfer tickets-to give .to passengers, it was not liable t,o the penalty -for the' refusal of the conductor to give the plaintiff a transfer ticket. This was error. The refusal of the conductor was that of the defend-' ant. Section 39 of the Railroad Law, which provides that any railroad corporation which shall ask or receive inoré than the lawful rate of fare, 'unless “ through inadvertence or mistake, not amounting" to gross negligence ”,' shall incur a penalty of $50, does not apply to the case. ' It is not'to be -construed' with section 104. Its genesis and context are different (Laws off 1857, ch. 185.; Laws of 1886, ch. 415), and the reservation in it has reference to mistakes of fact, suelvas of the distance between stations, or the like. The present case is for the refusal of a transfer ticket, not for asking or receiving an unlawful rate of fare.- • The judgment should be reversed.

Hirschberg, P. J., Jenks and - Hooker, .JJ., concurred; Woodward, J., voted for affirmance on the opinion of Crane, County Judge. • '

Judgment and order of the County Court of Kings. county reversed and new trial ordered, costs to abide the event.

The following is the opinion of Crane, J.:

Crane, J.:

I have decided a. case similar to this (Schwartzman v. Brooklyn Heights R. R. Co., 50 Misc. Rep. 116). The opinión . in that case I make the opinion in this, and give the reasons therein stated for granting the motion made herein to direct a verdict for the defendant.  