
    Theresa Nicholson, Respondent, v. New York City Railway Company, Appellant.
    (Action No. 4.)
    . First Department,
    April 5, 1907.
    Railroad — penalty for refusing transfer—when plaintiff not entitled to recover.
    The penalty for refusing a transfer on street surface railroads in the city of New York imposed by section 104 of the Railroad Law is designed to promote the public convenience, and not to put money in the pocket of an individual who does not come fairly within the provisions of the statute. Thus, when it is admitted "that the .plaintiff became a passenger for the sole purpose of bringing action for the penalty, she is not entitled to recover. Under such circumstances she is not a party “ aggrieved” within the meaning of the statute.
    Appeal by the defendant, the New York City Railway Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of February, 1907, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered on the 2d day of October, 1906, upon the decision of the court.
    
      
      James L. Quackenbush, for the appellant.
    
      E. V. R. Ketchum, for the respondent.
   McLaughlin, J.:

This action was brought in the Municipal Court of the city of New York to recover a penalty of fifty dollars for the defendant’s refusal to furnish the plaintiff a transfer between different lines of its street surface railroads in the city of New York in alleged violation of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 616.)

Upon the trial, at the close of plaintiff’s case, the defendant moved that the complaint be dismissed upon the ground, among others, that the plaintiff, at the time the transfer was refused, was not a passenger in good faith seeking to be transferred to a connecting. line of defendant’s road; that, on the contrary, the fact was uncontradicted that her sole purpose in asking for a transfer was to bring an action to recover the penalty in case of its refusal. The motion was denied and the defendant, after offering in evidence the record in another case tried immediately preceding this one, rested, and renewed the motion to dismiss. The motion was denied and judgment rendered in favor of the plaintiff for the penalty, together with the costs, from which the defendant appealed to the Appellate Term. There the judgment was affirmed, and, by permission, the defendant appeals to this court.

I am of the opinion that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed and a new trial ordered. The section of the statute above referred to and which is relied upon as a justification for the maintenance of this action, reads 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 promoted 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. The provisions of this section shall only apply to railroads wholly within' the limits-of any one incorporated city or village.” The purpose of this statute is set forth in it. It is to promote the public convenience, and that this may be accomplished it directs that the railroads embraced in any contract referred to therein shall be operated' substantially as a single road with a singló rate of fare. The “ public convenience ” has reference manifestly to passengers traveling in good faith. This is apparent from the statute itself, because it commands that the railroad shall carry for a single fare between any two points on its roads “ any passenger desiring to make. one continuous trip between such points.” The plaintiff, therefore, in order to maintain the action, had to prove that 'she became a passenger in the first- instance in good faith and for the purpose of going to some point on the line to which she wished to be transferred. She not only failed to prove this fact, but her counsel frankly conceded at the trial, as he did upon the oral argument of the appeal in this court, that her sole purpose in becoming a'passenger was to bring an action for the penalty .provided in the statute. Obyionsly, under such circumstances, the action cannot be maintained.

It will be noticed that only a passenger who has .been “ aggrieved ” can-maintain an action to recover the penalty. The plaintiff was not “ aggrieved.” Indeed, she'would have been disappointed had she received the transfer demanded, because in that event the purpose of her taking the Car would have been frustrated. The object of the statute, as already indicated, is to promote the public convenience. It is not to put money in an individual’s pocket, unless such individual comes fairly within the provisions . of the statute, viz., a passenger in good faith who has been aggrieved by the railroad company’s refusal to give a transfer to some point on a connecting line to which he desires, to go. (Myers v. Brooklyn Heights R. R. Co.] 10 App. Div. 335; Southern Pacific Co. v. Robinson, 132 Cal. 408; Jolley v. Chicago, M. & St. P. R. Co., 119 Iowa, 491.)

In Myers v. Brooklyn Heights R. R. Co. (supra) the precise question here presented was considered and a similar conclusion reached. The construction there placed upon the statute was binding upon the Appellate Term and might well have been followed, but it was not — presumably because the . court was of the opinion that it was controlled by Fisher v. N. Y. C. & H. R. R. R. Co. (46 N. Y. 644), but in the Myers case the reason why the Fisher case did not apply to an action brought to recover a penalty under section 104 of the Bailroad Law was pointed out. The statute upon which the Fisher case rested (Laws of 1857, chap. 185) is materially different. That act provides that' “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same.” Not a word is said in that statute about a passenger, but it is the party paying the excess of fare who may maintain the action. Here, the present statute is not only limited to a passenger, but to one who desires to go to some point on the connecting line. The statute, therefore, as it seems to me, by express provision precludes one from suing for a penalty who has no intent to go to a point on the connecting line, but who takes the car merely for the purpose of putting himself in a position to bring an action.

The determination of the Appellate Term and the judgment of the Municipal Court must, therefore, be reversed and a new trial ordered, with costs to appellant to abide event.

Patterson, P. J,, Houghton, Scott and Lambert, JJ., concurred.

Determination and judgment reversed, new trial ordered, costs to appellant to abide event.  