
    Erma Gasper, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Carriers — Statutory penalties enforceable against carriers — Liability to penalty for refusing transfer ticket.
    Street railways — Operation — Statutory regulation — Fares.
    Plaintiff, upon boarding a Third avenue car going west on One Hundred and Twenty-fifth street, paid her fare and asked for a transfer south along Amsterdam avenue and, upon arriving at Amsterdam avenue, the intersecting point of another line operated by defendant, boarded a south bound Amsterdam avenue car; but the conductor refused to accept the green transfer ticket which had been given to her on the car at One Hundred and Twenty-fifth street, which transfer, under defendant’s regulations, was good only for continuous northern travel, and plaintiff, under compulsion, paid a second fare and continued her journey. In an action to recover the penalty prescribed for the refusal to give a transfer; held that, in the absence of any proof of notice to the public of such regulations, the giving of the green transfer ticket was tantamount to such a refusal and plaintiff was entitled to recover.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, twelfth' district, borough of Manhattan.
    Frank D. Wynn, for appellant.
    N. L. Reach, for respondent.
   McCall, J.

This is an action brought to recover a penalty for refusal to transfer a passenger. The conceded or established conditions are, that along One Hundred and Twenty-fifth street in this city the defendant owns, manages, controls or operates a line of railroad whose termini are on that street, in the vicinity, respectively, of the two rivers that flow on either side of the city; that along and over the tracks of that road they also run ears that, beginning with their trip at City Hall, come northwardly along Third avenue, turn into One Hundred' and Twenty-fifth street and traverse that street in a westerly direction to Amsterdam avenue, when they again go northwardly along. Amsterdam avenue to Fort George, which is the northern terminus of that route. In making the return trip they follow the same streets, but going in a southerly and easterly direction, the reverse of their northerly trip, At Amsterdam avenue and One Hundred and Twenty-fifth street the route is intersected by another line owned, operated, or managed by defendant, whose cars traverse Amsterdam avenue in a northerly and southerly direction. All these lines are wholly within the limits of the city of New York. At their point of intersection there is no question that, in pursuance of the requirements of the statute, the defendant has established the transfer system. The litigation, however, is occasioned, not because of an absolute ignoring of the law on the part of the defendant, but rather through an attempt by it to establish, in observance of the statute, a so-called reasonable regulation made for the convenience of the public. On the trial of the cause it was proven that, on December 12, 1905, this plaintiff, accompanied by her sister, was on One Hundred and Twenty-fifth street in the vicinity of Eighth avenue and that they boarded a car going westerly along One Hundred and Twenty-fifth street. Plaintiff paid her fare and asked the conductor for a transfer to take her south. The conductor handed her a transfer, which is an exhibit in the case. At Amsterdam avenue she alighted from the car and proceeded to board an Amsterdam avenue car south bound. On said car she tendered to the conductor the transfer which had been given to her at her request while travel-ling on One Hundred and Twenty-fifth street, and said conductor refused to accept same. Under compulsion and protest she paid a second fare and rode to her destination, ¡Ninety-fifth street and Amsterdam avenue. The attitude of the defendant, which it assumed to meet these conditions and which it claims should operate to avoid the penalty, is that, on cars running along One Hundred and Twenty-fifth street, it had established a rule or regulation calling for the issuance of these transfer tickets in different colors, so that a passenger riding west along One Hundred and Twenty-fifth street could secure, by boarding a crosstown car, a white transfer ticket which would entitle him or her to ride on said transfer either north or south; that, on boarding a car that had come north along Third avenue and was continuing west along One Hundred and Twenty-fifth street to ultimately resume its northern trip along Amsterdam avenue, a green ticket would issue which would permit the passenger, on said transfer, to go or continue in a northerly direction only; that plaintiff could just as well have taken one of the crosstown cars, which the evidence shows were run with great frequency and, on that car, would have received a transfer which would have carried her southerly, along Amsterdam avenue, for the single fare, but, on taking the ear she did, which we will call the Third avenue car, she lost her right to be transferred in a southerly direction and could only receive a green transfer ticket, good only for continuous northerly travel; that this rule so established is a reasonable one and was adopted as a regulation in giving transfers for public convenience and also by its use protects the company from the imposition of passengers riding all day up and down and across the city for one fare. We recognize the force of this contention and can readily see, from the immensity of traffic in our city 'and intricate details involved in catering to same, that a regulation or rule of some kind must ultimately be evolved and meet with judicial approbation; but the difficulty with the case at bar, which prevents us from passing upon such a condi-, tion, is, that, while we have some evidence of the institution of such a rule by the company, the record is wholly destitute of proof of any notice to the public of the inauguration of such provisions; and to make a regulation of such kind (which of itself may well be determined a reasonable and necessary one) of any force whatever, there must be attendant proof of reasonable endeavor and effort by notice to apprise the public of its institution. Of course, we have observed that there was no actual refusal to transfer; but what was done in handing the passenger a worthless piece of paper, as this northbound transfer was, in so far as the accomplishment of the passenger’s intention, expressed to the conductor of a desire to go south was concerned, must be taken as tantamount to a refusal; and we believe, therefore, that the judgment should be affirmed, with costs.

Gildersleeve and Levektritt, JJ., concur.

Judgment affirmed, with costs.  