
    Rilla Munro, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 21, 1907.
    Limitation of action — penalty'for refusing transfer.
    The Statute of Limitations on an action under section 104 of the Railroad Lawto recover a penalty for the refusal of a transfer is three years, being governed by subdivision 3 of section 883 of the Code of Civil Procedure. The limitation of one year prescribed by section 39 of-the Railroad Law relating to penalties for exacting ah excessive fare, is not applicable to an action under section 104. ‘
    Appeal by the defendant, The Brooklyn Heights, Railroad'Company, from a judgment of the Municipal Court of the city of New York, in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of 'June, 1905.
    
      Charles A. Collin, for the appellant.
    
      Cyrus V. Washburn for the respondent.
   Hirschberg, P. J.:

The only question presented by this appeal is whether the action was brought in time. The plaintiff has"recovered a judgment for a penalty of fifty dollars incurred by -the defendant for a violation of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 676) requiring it to carry a passenger for a single fare over certain lines and to give such passenger a transfer for that purpose.

■ The facts are undisputed. The plaintiff, on the 11th of April, 1904, boarded a car of the defendant’s Halsey Street line at the-crossing óf Halsey street and Reid avenue, going west on Halsey street in the borough of Brooklyn, and paid' the conductor a five-cent. fare and demanded a transfer to the Marcy Avenue line. It is conceded that she was entitled to such a transfer under the law. The transfer was refused. When she reached the-Marcy Avenue line, she changed to a car of that line and there was required to pay a second fare of five cents. The action was commenced May 9, 1905, more than one year after the cause of action accrued, and the appellant contends that by the terms of the Railroad Law (supra) the action is barred because not commenced within the year.

By section 383 of the Code of Civil Procedure, subdivision 3, it is provided that “ An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the State, except where the statute imposing it prescribes a different limitation,” must be commenced within three years after the cause of action has accrued. Section 104 of the Railroad Law (supra), under which this action is brought, is entitled Contracting corporations to carry for one fare; penalty.” It provides as follows: Every such corporation entering into such contract shall carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one • continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promotéd by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party.”

It is obvious that no period for the commencement of the action is prescribed by the- section quoted, and that the limitation is, therefore, that prescribed in the Code of Civil Procedure, unless some other provisions of the Railroad Law are controlling to the contrary. The contention of the appellant is that the provision of section 39 of chapter 565 of the Laws'of 1890 is applicable and controlling, and limits the time for the commencement of this action to the period of one year from the incurring of the penalty. Section 39 (supra) is entitled: “ Penalty for excessive fare,” and it provides that “ Any railroad corporation, which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party paying the same; but no action can be maintained therefor, unless commenced within one year after the cause of action accrued.”

I do not think the limitation prescribed in section 89 (supra) is applicable to an action for the violation of the provisions of section 104.' While the two sections may possibly be read and construed together for many purposes, with respect to the question involved on this appeal they are to he regarded as quite separate and distinct. Section 89 relates to the exaction of more than, the customary rate of lawful fare, namely, five cents. It could he violated in the case of a passenger making a trip in a single car who has no desire or intention of being transferred to a connecting line. Section 104 relates to the carrying, of passengers on connecting lines for a single rate of fare and the giving of a transfer as evidence of the right of such carriage. While it is true that the violation of section 104 ,may incidentally result in the exaction of more than a single fare, and, consequently, the exaction of more than the lawful rate of fare, the penalty is aimed, not at the excessive rate as such, but at the refusal to carry the passenger on connecting lines operated by a single company under contract in the same manner as though they constituted a single railroad. (See, also, Snee v. Brooklyn Heights R. R. Co., 120 App. Div. 570.)

I. think that the action was in time, and that the judgment should be affirmed.

Woodward, Jerks, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  