
    McLEAN v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    March 11, 1904.)
    1. Street Railways—Refusal to Give Transfer—Penalty.
    Recovery of the penalty provided by Laws 189.0, p. 1114, c. 565, § 104, for refusal to give a transfer to “any passenger desiring to make a continuous trip,” may be had by one riding for the purpose of recovering penalties for the refusal.
    Appeal from Municipal Court, Borough of Manhattan.
    Action by John C. McLean against the Interurban Street Railway Company. From a judgment for plaintiff for $119.31, defendant appeals. Affirmed.
    Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.
    Henry W. Goddard and William E. Weaver, for appellant.
    R. M. Robinson, for respondent.
   PER CURIAM.

The judgment should be affirmed, with costs, on the authority of Topham v. Interurban St. Ry. Co. (recently decided by this court) 86 N. Y. Supp. 295, and the case of Fisher v. N. Y. C. & H. R. R. R. Co., 46 N. Y. 644, therein referred to. The distinction of the case-last referred to made in Myers v. The Brooklyn Heights R. R. Co., 10 App. Div. 335, 41 N. Y. Supp. 798, was not brought to the attention of this court at the time of the decision of the Topham Case. In the Topham Case the plaintiff was a bona fide passenger. In the case at bar the plaintiff rode under the advice of an attorney for the purpose of recovering penalties, but paid a second fare whenever a transfer was refused. In order to have the question settled in this department whether a person riding for such a purpose can maintain an action under section 104 of the railroad act (Laws 1890, p. 1114, c. 565), and also whether more than a single penalty can be recovered in one action, the appellant should have leave to app'eal to the Appellate Division.

Judgment affirmed, with costs, with leave to appellant to appeal to the Appellate Division. All concur.  