
    William R. Petze, Respondent, v. Coney Island and Brooklyn Railroad Company, Appellant.
    Second Department,
    June 29, 1908.
    Railroad—penalty — incorporated steam railroad — operation as electric line — excessive fares.
    A corporation, organized as a steam railroad under the statute, which alters its plant so as to run after the manner of an electric street railroad, is liable for the penalty prescribed by section 39 of the Railroad Law, if, instead of charging a uniform fare of five cents, it charges ten cents for a trip of less than three miles, such charge not being made through “ inadvertence or mistake not amounting to gross negligence.”
    Appeal by the defendant, the Coney Island and Brooklyn Bail-road Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff.
    
      John J. Kuhn [Owen K. Brown with him on the brief], for the appellant.
    
      Fullerton Wells, for the respondent.
   Gaynor, J.:

The defendant was organized as a steam railroad under the general steam railroad act, but is now run after the manner of an electric street railway. In place of charging a uniform fare of 5 cents, however, it charges 10 cents to go over its line, which can be justified only under its right to charge 3 cents a mile as not being a street surface railroad, as allowed by the Bailroad Law (sec. 3T, sub. 5). In that way it charged and collected- of the plaintiff 1-0 cents for riding less than three miles on its road, which is five or six miles long; and the plaintiff has recovered judgment against it for $50.01, i. e., for the overcharge of. 1 cent and a. penalty of $50, as allowed by section 39 of the Bailroad Law in the case of a railroad asking or receiving more than the lawful rate of fare, “ unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence.” The court below correctly found that there was no inadvertence or mistake. The evidence shows plan and intention, rather, under legal advice. If the defendant continues to claim its rights under the steam railroad law, rather than conform to the law of street surface railroads, it must conform to the former. The judgment should be affirmed.

Woodward, Hooker, Rich and Hiller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  