
    Nicholas M. Quade, Resp’t, v. The N. Y., N. H. & H. R. R. Co., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 10, 1891,)
    
    1. Corporation (foreign)—Service—Code Crv. Pro., § 431.
    Laws of 1846, chap. 195, § 8, which provides, after permitting defendant to extend its line into this state, that it “ shall be liable to be served by summons in the same manner as corporations created by the laws of this state,” does not make defendant a domestic corporation, or authorize such a service of process as is provided by § 431 of the Code Civ, Pro.
    2; Railroad companies—Illegal fare—Action for penalty—Service.
    In an action brought under Laws of 1857, chap. 185, which provides that any railroad charging more than the legal fare shall forfeit fifty dollars, “which sum may be recovered, together with the excess so received, by the party paying the same,” section 1895 of the Code Civ. Pro., providing that the summons “can be served only by an officer authorized to collect an execution issued out of the same court,” does not apply, as the plaintiff is a party aggrieved.
    Action brought to recover the penalty prescribed by chapter 185 of the Laws of 1857, for charging more than the legal fare. The following opinion was delivered by Freedman, J., in denying defendant’s motion:
    “ This is a motion to set aside the service of the summons in this action.. The motion is made on two grounds. The first is that the service was not made as prescribed by § 432, and the second is that the service was not made as prescribed by § 1895 of the Code of Civil Procedure.
    “ Concerning the first point, it is claimed that the defendant is a foreign corporation, and that in such a case the service must be made in strict conformity with the requirements of § 432. In fact, the service was not made according to the requirements of that section. It was made upon a director, which, under § 431, is good service in the case of a domestic corporation, but which is insufficient, under § 432, in the case of a foreign corporation. The first point would, therefore, be well taken, if it were not for the following considerations: The defendant corporation was originally chartered by the state of Connecticut, in the year 1844, under the name of the New York &New Haven Railroad Company. In the year 1846 it applied to the legislature of the state of New York for the permission to extend its road from the Connecticut state line to the line of the New York & Harlem Railroad, and to unite or connect with the last mentioned railroad at or near Williams Bridge. Such permission was granted by chapter 195 of the Laws of 1846, and one of the conditions imposed by the eighth section of said act was that the said company shall be liable to be served by summons in the same manner as corporations created by the laws of this state. This provision subjects the defendant to the liability of being sued by summons like any domestic corporation, although, for all other purposes, it may be a foreign corporation. This being so, I am of the opinion that the service of the summons upon a director was a good and valid service.
    
      “ Concerning the second point, it must be noticed that the action is for the recovery of a penalty given by a statute. The plaintiff claims in his complaint that on a certain day, on which he took passage on a passenger train of the defendant, to be carried on the defendant’s road from One Hundred and Thirty-fourth street, in the city of New York, to Morris Park, in the state of New York, and thence back to said One Hundred and Thirty-fourth street, he was charged and compelled to pay, contrary to the laws of the state of New York, fourteen cents in excess of the sum which the defendant had the right to ask and to receive, by means whereof the defendant became liable to pay to the plaintiff, by virtue of the statute of the state of New York, entitled ‘An act to prevent extortion by railroad companies ’ passed March 27, 1857, the sum of $50, together with the sum of fourteen cents, so asked and received as aforesaid, in excess of the legal fare. That being the character of the complaint, the defendant claims that service of the summons could be made only as prescribed by § 1895, and that, because in fact it was not so made, the service which was made should be vacated. Section 1895 provides as follows: ‘ The summons in an action brought as prescribed in the last section, can be served only by an officer authorized by law to collect an execution issued out of the same court,’ etc. The section thus referred to (§ 1894) provides that, where a penalty or forfeiture is given by a statute to any person who sues therefor, an action to recover it may be maintained by any person in his own name. But this does not apply to plaintiff’s case. The plaintiff is a person aggrieved, and the statute gives a right of action to him, and not to any person who may sue for the penalty. The language of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886, is, ‘ which sum may be recovered, together with the excess so received, by the party paying the same,’ etc. This distinction has been carefully preserved by the Code of Civil Procedure. Section 1893 provides that, where a penalty of forfeiture is given by the statute to a person aggrieved by the act or omission of another, the person to whom it is given may, if it is pecuniary, maintain an action to recover the amount thereof, etc., while § 1894, as already shown, provides for cases in which the right to sue for the penalty is given by the statute to any person. Section 1893, therefore, relates to actions which may be brought by persons aggrieved, while § 1894 relates to actions which may be brought by common informers. The distinction is a material one; and, as § 1895 relates only to the actions to be brought under § 1894, it does not include the actions which may be brought under § 1893. The action brought by the plaintiff falls within § 1893, and consequently § 1895 does not apply. For the foregoing reasons the motion must be denied, with ten dollars costs.”
    
      Henry W. Taft, for app’lt; E. M. Wight, for resp’t.
   Per Curiam.

—The defendants were attempted to be brought into court by a service upon one of their directors of a summons of the kind prescribed by the Code. Such a service is not valid, excepting in the cases provided concerning a domestic corporation. The defendant is a foreign corporation. The service was upheld below under § 8, chap. 195, Laws of 1846, which provided that the defendant “ was liable to be served by summons in the same manner as corporations created by the laws of this state.” The court however is of the opinion that to constitute a service under the act cited it would be necessary to serve the kind of process described. The summons named in the act was not of the character, in form or substance of the summons named by the Code. As neither the act of 1846 nor the Code provided for the service that was made, that service should be set aside.

The learned judge was correct in holding that this action is not within § 1895, Code Civ. Pro.

Order reversed and motion below granted, with ten dollars costs.

Sedgwick, Ch. J., Truax and Dugro, JJ., concur.  