
    (120 App. Div. 570)
    SNEE v. BROOKLYN HEIGHTS R. CO.
    (Supreme Court, Appellate Division, Second Department.
    June 7, 1907.)
    Cabbiebs—Steeet Railroads—Passengers—Transfers—Action fob Refusal.
    In an action under Railroad Law, Laws 1892, p. 2107, c. 565, § 104, against a street railroad company for refusing a transfer, it is no defense that the company provided the conductor with transfers to give to passengers ; the conductor’s refusal being the company’s, and section 39, providing exempting railroad companies from liability for asking or receiving more than lawful fare, where it is done through inadvertence or mistake not amounting to gross negligence, being inapplicable.
    Woodward, J., dissenting.
    
      Appeal from Kings County Court.
    Action by John Snee against the Brooklyn Heights Railroad Company. Judgment of dismissal (98 N. Y. Supp. 941), and plaintiff appeals.
    Reversed.
    Argued before HIRSCHBERG, P. J., and WOODWARD, JENICS, HOOKER, and GAYNOR, JJ.
    Alfred J. Gilchrist (Jacob Neu, on the brief), for appellant.
    I. R. Oeland, for respondent.
   GAYNOR, J.

This action was brought to recover the penalty of $50 prescribed by section 104 of the railroad law (Laws 1892, p. 2107, c. 565) for 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 no explanation or reason. The complaint was dismissed on the ground that the defendant having provided for transfers, and given its conductors transfer tickets to give to passengers, it was not liable to 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 defendant. Section 39 of the railroad law, which provides that any railroad corporation which shall ask or receive more 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 1857, p. 432, c. 185; Laws 1886, p. 660, c. 415), and the reservation in it has reference to mistakes of fact, such as 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, and new trial ordered; costs to abide the event. All concur, except WOODWARD, J.,' who votes for affirmance on .the opinion of Crane, County Judge.  