
    Samuel Baron, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Carriers — Statutory penalties enforceable against carrier — Liability to penalty for refusing transfer ticket — To other car on company’s line.
    The provision of section 104 of the Railroad Law (L. 1890, ch. 565) requiring transfers to be given passengers is not limited to leased lines but applies to the company’s own line when all cars do not run through and the car boarded by a passenger stops short of his destination on the company’s line.
    The refusal of a street railway company to transfer a passenger from a short service car which stops at a point on the company’s line short of the passenger’s destination to another car running through to the end of its line and -past his destination is a violation of section 104 of the Railroad Law although the former car bore a conspicuous sign stating that it did not run so far as the passenger’s destination.
    MaoLean, J., dissented.
    Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, third district, borough of Manhattan, rendered in favor of the plaintiff.
    James L. Quackenbush (Henry F. Gannon, of counsel), for appellant.
    Laurence J. Bershad, for respondent.
   Gildersleeve, J.

On March 28, 1906, the plaintiff boarded a south bound Sixth avenue car at Seventeenth street and Sixth avenue with the intention of going to Spring street and West Broadway, a point upon the Sixth avenue car line operated by the defendant. The ear bore, in a conspicuous place, the sign: “ 4th Street onlyand, when it reached Fourth street and Sixth avenue, the conductor ordered the plaintiff and all other passengers off, stating that the car did not go any farther. The passengers alighted and the car switched off on the north bound track. The plaintiff had paid the fare of five cents on entering the car and, when ordered off at Fourth street, as aforesaid, demanded a transfer from the conductor entitling him to a continuation of his trip to his place of destination, which transfer the conductor refused. The plaintiff recovered judgment in the court below for fifty dollars and costs. "It appears from the evidence that the defendant company, in regulating its traffic, provided, over the route the plaintiff desired to travel, two classes of cars upon the same tracks, viz., long and short service cars. There were two southerly termini, one at Fourth street and Sixth avenue being the terminus for the short service cars, and the other at South Ferry for the long service cars. The record does not disclose the ground of the decision. We assume that the learned trial justice rested the judgment on a violation of section 104 of the Railroad Law, which provides that, upon the refusal of a street oar company to issue a transfer to a passenger, entitling the passenger to a continuous trip from the point of embarkation to another point on the railroad operated by such company, the railroad company shall forfeit fifty dollars to the aggrieved party. What the plaintiff demanded was a transfer from a short service car to a long service car upon the same line. Under the circumstances, was the refusal a violation by defendant of the provisions of section 104 of the Railroad Law? We think it was. Dunphy v. Erie R. Co., 42 N. Y. Super. Ct. 128; Jenkins v. Brooklyn Heights R. R. Co., 29 App. Div. 13; O’Reilly v. Same, 179 N. Y. 450; also see opinion in the case of Peter C. Kelly v. N. Y. City R. Co., 52 Misc. Rep. 585. The judgment stands upon the proposition that a railroad company refusing a transfer, from a line owned or operated by it to another line or car owned or operated by it, to a passenger desiring to make a continuous trip, is amenable to section 104 of the Railroad Law. We consider this proposition sound and fully supported by the construction given to the statute in question, in numerous decisions already rendered. We cannot agree with the contention of the defendant that the plaintiff failed to establish a cause of action on the ground' that there is no proof that the transfer demanded by the plaintiff was to a leased line. Griffin v. Interurban St. R. Co., 179 N. Y. 449, is not authority for this claim. It was held in that case that section 104 applied to refusals to issue transfers to leased lines. The decision nowhere assails the proposition that a street car company, upon the refusal to issue a transfer from a line owned by it to another line owned by it, when demanded by a passenger desiring to make a continuous trip, is not amenable to section 104 of the Railroad Law. The Legislature never intended that the obligation imposed by said section should be limited to leased roads. It is not an excuse for a refusal of a transfer to the plaintiff to say that the giving of a transfer would confer upon him the privilege of stopping over. This argument could be urged against all transfers. We may properly take notice of the fact that the region of the city between Fifty-ninth and Fourth streets, through which the car under consideration passed, is largely a congested business section, where the traffic is much heavier than in the extreme northerly or southerly parts of the city. The running of short service cars between the long service oars through crowded avenues we consider a reasonable regulation, well within the powers of the defendant company in the management of its railroads, when, as in this case, reasonable notice is given of the conditions of operation. We are of opinion, however, that defendant cannot lawfully refuse a transfer to a passenger whose continuous trip carries him beyond the terminal point of the short line. We concede to the defendant the right to establish lines of short service cars, but we can find no authority that permits the defendant, no matter how conspicuous and complete the notice, to arbitrarily require passengers desiring to make a continuous trip beyond the place of destination of the short service car, to board only a long service car. If the defendant possesses such authority, it might avoid the giving of many transfers by establishing numerous short routes in various parts of the city and by operating thereon, mainly, short service cars.

The judgment must be affirmed, with costs to the respondent. The question involved in this appeal is of importance, and the defendant may have leave to appeal to the Appellate Division.

Ambito, J. concurs.

MacLean, J. (dissenting).

The statute (Railroad Law, § 104), read literally, does not indicate, rather the contrary, that a person shall have transfers one after another to ride on successive cars running in one direction. The plaintiff’s contention followed further to its conclusion would allow men, eke women, to' get off and proceed on less or more occupied cars with or without occasion them thereto moving. The public convenience mentioned in the statute is neither that of a passenger who has blundered nor of one who has spied out an informer’s chance for a penalty. Statutory interpretation or divination to express the intent of the legislators is always an opinionative essay. While avoiding forwardness of that sort it still may be said, it looks not unlikely that public convenience will be conserved the better by letting passengers take the cars designed and designated for them according not merely to custom but to what has been found the better way for well nigh, if not fully, the half a century in which cars have been run on short runs to accommodate traffic in the more frequented portions of routes to the relief of passengers 'and lessening of crowding upon the long runs. However those presently exploiting them have come by the franchises for.carrying passengers, they were granted, it must be assumed, for public benefit. The very name “ rapid transit,” far older than the 'act of 1875 first so named, more than suggests the desire amounting to popular craving for swift transportation impeded as little and as seldom as it may. It is essential, as said in our court of last resort, to the convenient and useful working of the property that there be no unnecessary stoppage of regular transit at a rate of speed continuously kept up and it is incumbent upon the passenger that he cause no unnecessary hindrance thereto.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Judgment affirmed, with costs.  