
    Jacob Goodman, Appellant, v. The New York Railways Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Penalties — action to recover for overcharge —■ evidence.
    Plaintiff boarded a “4th So Madison Avenue ” car, southbound, at Forty-second street, on a drizzly and cloudy night, his destination being Brooklyn bridge. As the car turned into Astor place he asked for a transfer, which was refused, although at least four other passengers received them, and said car proceeded south on Broadway, and plaintiff had to pay additional fare. In an action to recover a penalty for overcharge, the weight of evidence was overwhelmingly to the effect that there was no illuminated sign on the ear bearing the words “Astor Place,” and no claim was made that the conductor notified any of the passengers that it was an Astor place car. Held, that in the circumstances plaintiff was entitled to believe that the car would carry him to his destination, and a judgment in defendant’s favor will be reversed and a new trial ordered.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant after a trial before the court without a jury.
    L. J. Morrison, for appellant.
    James L. Quackenbush (Wm. J. Shells, of counsel), for respondent.
   Bmm, J.

Plaintiff sued to recover fifty dollars, penalty prescribed by Laws of 1910, chapter 481, sections 59 and 181, and also Laws of 1910, chapter 480, section 49, subdivision 7. The two enactments first recited forbid an overcharge of fare or the charging of more than one fare for a continuous ride over the main line of any road or any branch or extension thereof. The last named enactment requires the giving of a transfer.

Plaintiff boarded a “ 4th & Madison Avenue ” open car, southbound, at Forty-second street shortly before ten o’clock of a drizzly and cloudy night, his destination being Brooklyn bridge. As the car turned into Astor place, he asked for a transfer, which was refused, though at least four other persons on the car, who asked for transfers at the same time and place, received them. They proceeded south on Broadway with their transfers. Plaintiff did the same, but had to pay the additional fare.

As to the question of transfers, appellant’s point seems to be, not that the regulation, of which he was aware, that transfers should be asked for at the time of paying the cash fare, is unreasonable; but that it is not a uniform rule, and, therefore, unfair and unreasonable on that account. The conductor admitted that he had discretion to give transfers at Astor place, and explained his giving of them to others because “ they looked like strangers.” There is much force in plaintiff’s claim, but it need not, in my opinion, be determined in this case.

I shall assume that it is reasonable operation for a street railway to run “ short service ” cars, and to require through passengers, who accidentally or intentionally board such cars, to change at the short ” terminus into a through car. It may also be accepted as a reasonable regulation that passengers desiring transfers shall demand them at the time they pay their fare.

The real question then is whether this car is to be properly classed as a short service car ” boarded voluntarily by plaintiff, when he was at liberty to wait for and take a through car on the same line. Plaintiff testifies positively that there was no sign illuminated bearing the words “ Astor Place ” on the car in question; and that the only inscription that was illuminated was ‘ ‘ 4th & Madison Ave. ’ ’ In this respect he is confirmed by one or two of his companions. The conductor does not even claim to have notified plaintiff or any of the passengers that it was an Astor place or any other form of “ short service car ” when they entered or when they paid their fare. He does testify that the car bore the inscription “Astor Place ” and that that was illuminated by “An electric bulb.” It is significant that neither plaintiff nor his three companions saw the sign, and that the conductor promptly gave four transfers to four other passengers. I think that the weight of evidence is overwhelmingly to the effect that there was no such lighted sign on the car at that time; and there is no claim that the conductor notified any of the passengers that it was an Astor place car. See opinion of Scott, Laughlin and Clarke, JJ., in Baron v. New York City R. Co., 120 App. Div. 134. Moreover, I do not believe that the mere placing of a sign reading “Astor Place ” on a “ 4th & Madison Ave.” car is sufficient notice to a passenger that it is a “ short- service car.” The mere words “ Astor Place ” without the usually added word “ only ” do not, to my mind, apprise an intending passenger that the car is a “ short service ” one. Plaintiff boarding a ‘ ‘ 4th & Madison Ave. ’ ’ car, under the circumstances detailed, was entitled to believe that it would carry him to Brooklyn bridge, his intended destination. There was, as he himself has testified, no reason why he, at that time, should ask for a transfer; and when, without any notice, the oar turned into Astor place, he was entitled to demand and receive the transfer to continue on the same line, which he demanded, and its refusal compelled him to pay an overcharge which was made deliberately in violation of the statute.

Some point is made by respondent of the fact that there was no proof that the Broadway line was controlled or operated by the defendant. It is true that the defendant’s counsel, after various concessions had been made at the opening of the case and some disagreement appeared between counsel, remarked: I presume that all those concessions will be removed from the record,” and the court said: Then there is nothing in this case up to this time except that the jury is ready to hear the evidence.” (The jury was subsequently waived.) But the statement about the Broadway line was not a concession. Defendant’s counsel, at the opening of the case, said: “ Your Honor will take judicial notice of the fact that the New York City Railways Company run down Broadway as well as Park Avenue and other avenues,— that is a matter of common knowledge. ’ ’

There is nothing in the subsequent proceedings or the remarks of the counsel or the court to indicate that defendant’s counsel had changed his position in this regard, and it would be unfair to charge plaintiff’s counsel, under these circumstances, with the need of proving the control or operation of the Broadway line by the defendant.

Seabuby and Page, JJ., concur.

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