
    Wray v. The Pennsylvania Railroad Company.
    
      (Supreme Court Chambers, New York County,
    
    
      Filed November 26, 1888.)
    
    1. Actions fob penalties.
    In an action of a penal character the defendants have the right to demand that they shall be apprised of the precise ground upon which the plaintiff claims that they have violated the statute, and that the plaintiff has become entitled to the penalty.
    2. Same—Penalties against febby companies—Laws of 1888, chap. 260.
    Under Laws of 1888, chapter 260, which provides that ferry companies operated from or to a city of 50,000 inhabitants or over, shall-post in a conspicuous and accessible position outside and adjacent to each entrance of such ferry, and in at least four accessible places in plain view of the passengers upon each of the boats used by said ferry, a schedule of the rates of ferriage, etc., and that a failure so to post Correct schedules shall, among other things, render the ferry company liable to a forfeit of $50 for each and every day it neglects so to do, to he recovered by any person who shall sue therefor. Held, that in an action for a penalty, plaintiff should disclose whether the violations claimed to have been committed consisted in omissions to post the schedules referred to in the act at the entrance of a ferry, or in the other four accessible places therein mentioned. The defendants are entitled to be informed as to the precise violations with which they are charged.
    3. Same—Pleading—Complaint containing two causes oe action.
    The complaint alleged as a first cause of action, “that defendant (a foreign corporation) operated a certain ferry at the foot of Cortlandt street in the city of New York, etc.” The second cause of action stated in the complaint related to the Desbrosses street ferry, alleged to he operated or controlled by the defendants ; and the plaintiff avers each and every allegation in the second and third paragraphs of the complaint under said first cause of action, as if they were therein repeated with reference to said last mentioned ferry. Held, that it was the duty of the plaintiff to have stated each alleged violation of the act as a complete cause of action by itself.
   Lawrence, J.

This is an action brought to recover the sum of $10,500, alleged to be the amount of certain penalties incurred by the defendant, by reason of violations of the provisions of chapter 260 of the Laws of 1888. That act provides as follows :

Section 1. Within thirty^ days after the passage of this act every person, corporation or association owning, leasing, operating or controlling any ferry in this state, or between this state and any other state, operating from or to a city of fifty thousand inhabitants or over, shall post in a conspicuous and accessible position outside of and adjacent to each entrance to such ferry, and in at least four accessible places, in plain view of the passengers upon each of the boats used on said ferry, a schedule plainly printed in the English language of the rates of ferriage charged thereon and authorized by law to be charged for ferriage over said ferry.

§ 2. If any such person, corporation or association shall fail to comply with the provisions of this section 1 of this act, or shall post a false schedule, they shall be guilty of a misdemeanor, and in addition shall forfeit and pay the sum of fifty dollars for each and every day they shall neglect or refuse to put such schedules, or any of them, to be recovered by any person who shall sue therefor in any court of competent jurisdiction.

It is alleged in the complaint as a first cause of action that the defendant is á foreign corporation, organized under the laws of the state of Pennsylvania, owning, leasing, operating or controlling a certain ferry at the foot of Cortlandt street in the city of New York (which is a city containing fifty thousand inhabitants or over), running from the foot of C'ortlandt street in said city to Jersey City, and known as the Cortlandt street ferry ; that the defendant corporation has utterly failed to comply with the provisions of the act which is set forth in full in the complaint, and has wholly neglected and refused, as thereby required, to post schedules of the rates of ferriage charged, or authorized by law to be charged, for ferriage over said ferry for a period of one hundred and five days and upwards since the expiration of thirty days after the passage of said act.

The second cause of action stated in the complaint relates to the Desbrosses street ferry, alleged to be operated or controlled by the. defendants, and the plaintiff avers each and every allegation in the second and third paragraphs of the complaint under said first cause of action, as if they were therein repeated with reference to said last mentioned ferry. It will thus be perceived that the plaintiff’s claim is for penalties amounting in respect to each ferry to the sum of $5,250.

It is now moved that the complaint be made more definite and certain by stating separately and numbering each alleged cause of action therein set forth, and also by stating whether each of said alleged causes of action is claimed to have accrued by reason of the defendant’s pretended failure to post schedules of its rates of ferriage in a conspicuous and accessible position, outside of and adjacent to each entrance to its ferry, or by reason of its pretended failure to post such schedules in at least four accessible places in plain view of the passengers upon each of the boats used upon its ferry, and in case it is claimed that such alleged causes of action are for a pretended failure to post said schedules at said entrances to such ferry, by stating specifically at what entrances to such ferries such failure is claimed to have existed. And in case such alleged causes of action are for a pretended failure to post said schedules upon the defendant’s ferry boats, by stating specifically the boats upon which it is claimed such pretended failure occurred, and also for such other and further relief as may be proper.

This being an action of a highly penal character, the defendants have the right to demand that they should be apprised of the precise grounds upon which the plaintiff claims that they h ave violated the statute, and that the plaintiff has become entitled to the large sum of money for which he demands judgment.

In Key v. McSweeney (15 Abb. N. C., 229), Mr. Justice Bockes held that a complaint in an action brought to recover penalties for a violation of the excise laws, should state the names of the persons to whom the several sales were made, or an excuse should be given for not doing so, and in that case such circumstances should he stated as will, to some extent, identify the transaction complained of, or the complainant should be compelled to make the complaint more definite and certain or furnish a bill of particulars.

The learned judge, in his elaborate opinion refers to numerous authorities which support the conclusion at which he arrives, and it is not necessary for me to recapitulate them here.

An examination of the complaint in this action shows that the plaintiff wholly fails to disclose whether the violations claimed to have been committed consisted in omissions to post the schedules referred to in the act, at the entrance to the ferry, or in the other four accessible places therein mentioned. The defendants are entitled to he informed as to the precise violations . of the act with which they were charged. Roediger v. Simmons, 14 Abb. Pr. Rep., N. S., 256. Furthermore I am of the opinion that it was the duty of the plaintiff to have stated each alleged violation of the act as a complete cause of action by itself. It is very doubtful whether under the decisions in Fisher v. The N. Y. Central R. R. Co., 46 N. Y., 644; Foote v. Same, 50 id., 693, and Barker v. Same, 61 id., 655, the plaintiff would be entitled to recover more than one penalty for the alleged violations of the act, all committed prior to the commencement of this action. If so, the defendant has a right to have the several alleged causes of action definitely set forth, so that it may demur thereto, or move for such other relief in respect to the same, as the law entitles it to. I am of the opinion, therefore, that this motion should be granted to the extent of requiring the plaintiff to set forth the particular violations of the statute complained of as heretofore stated, and of requiring him to separately state and number his different causes of action. The order to he entered hereon will he settled on notice.  