
    Joseph H. Harkow, Appellant, v. New York City Railway Company, Respondent. (Action No. 16.)
    Second Department,
    July 23, 1907.
    Railroad—penalty for refusing transfer—waiver of prior penalties — process — Municipal Court, city of New York — delivery of summons for service — date of commencement of action.
    But one penalty for refusing a transfer can be recovered in a single action under ■section 104 of the Railroad Law, and the institution of such action is a waiver of all previous penalties incurred.
    Section 30 of the Municipal Court Act of. the city of New York, providing that an adtion shall be deemed commenced at the time the summons is actually delivered for service, should'be construed only as saving the action from the Statute of Limitations from that date, and a delivery for service is not equiva- . lent to the actual personal service required by-other sections of the - statute. Hence, when one brings two actions for a penalty under section 104 of the ■ Railroad Law and the summons in both actions are actually served on the same date, the action for the first penalty is barred, although' the summons in that • action was delivered for service prior to the delivery of th'e summons in the second action.
    Gaynob, J., dissented, with opinion. .
    Appeal by the plaintiff, Joseph H. Harkow, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 25th day of January, 1907.
    
      
      H. J. Smith [Henry F. Gannon with him on the brief], for the appellant.
    
      Cyrus V. Washburn [Charles R. Herdt with him on the brief], for the respondent.
   Jenks, J.:

In Griffin v. Interurban St. R. Co. (179 N. Y. 438) the court say (p. 449) : “ A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.” This action is to recover a- penalty under section 104 of the Railroad Law for refusal to give a transfer ticket. The parties denominate it as action Ho. 16. The Municipal Court judge dismissed the plaintiff on the ground that his action was barred by the institution of his action Ho. 17. The summons and complaint in each action were served on the defendant on the same day, January 2, 1907.

The learned counsel for the appellant contends, that action Hó: 16 Was commenced on the day that the summons therein was actually, delivered for service, presumably December 21, 1906, and before the summons was likewise delivered in action No. 17. He rests his Contention upon section 30 of the Municipal' Court Act. That section provides: An action shall be deemed commenced at the time the summons is actually delivered for service. If the marshal or other person, having the summons to serve, cannot find the defendant so as to serve him therewith as required by this 'act, he must so return, arid the clerk shall, at the request of the plaintiff, if made between the last day when service could be had and the return day mentioned in said summons or alias, including such return day, continue from time to time to issue another summons, to be known as arid stamped alias,’ until the defendant is served.” But section 26 of the same act provides: An action brought in the municipal court of the city of New York,'must be commenced by the service of a summons,- or the voluntary appearance of and joinder of issues by the parties.” And section 31 provides in effect that that service shall be personal. Again, section 30 requires progress and in express terms reqiiires seiwice on the defendant. Moreover, section 30 but provides that the action “ shall be deemed commenced; ” that is, it shall be considered or regarded as commenced. It seems absurd to conclude, in the face of this expres-; si on—-of these positive provisions of section 26, of section 31 and of the requirements for service in the very section itself, that the same section means that for all intents and purposes the action was ■ commenced by. delivery for service. Full vigor can be attributed'' to the section if we construe it as a saving provision from the Statute of Limitations. And this, Í think, is the true interpretation of it.

Section 20 of the Municipal Court Act makes the provisions of the Code of Civil Procedure applicable to the Municipal Court unless conflicting. Section 400, when read with section 399, both of the Code of Civil Procedure, plainly indicates the purpose and the purview of section 30 of the Municipal Court Act. (See, too, Clare v. Lockard, 122 N. Y. 263; Gough v. McFall, 31 App. Div. 578.)

Such a commencement of the action as is contemplated by section 30 has no logical application to the principle involved in the case at bar. Fc»r to tire minds of the courts who laid down the principle, the deterrent effect of action for penalties came from the fact that the offender had notice of its institution and the prosecution which natúrally might follow. (See the remarks of Church, Ch. J., in Sturgis v. Spofford, 45 N. Y. 453, and of Grover, J., in Fisher v. N. Y. C. & H. R. R. R. Co., 46 id. 659, cases cited by O’Brien, J., writing for the court in Cox v. Paul, 175 id. 328, 332.)

The judgment is affirmed, with costs.

Woodwabd, ITookee and Rich, JJ., concurred; Gayhob, J., read for reversal.

Gaynor, J.

(dissenting):

The statute in express terms provides that “ For every refusal to comply with the requirements of this section the corporation, so: refusing shall forfeit fifty dollars to the aggrieved party.” We have no right to nullify this statute by holding that the bringing of each successive action for a penalty waives all penalties incurred prior to the bringing of such action, and the actions brought therefor. The legislature has declared no such thing, but the very contrary. A court of last resort may disregard legislation, or even legislate, but only because there is no superior authority to reverse its action. This court is not in that position. It is for it to follow the statutes, and leave it to the highest court to dispense with their operation, if that course is to be pursued. We can declare no “sound public policy” as against a statute, and substitute it for the statute. Public policy must be looked for in our statutes in so far as they have spoken, not outside of them. And I venture to say there is no public policy for the shielding of railroad companies from the payment of statute penalties which they persistently incur year after year, but the contrary. For street railroad companies to continuously refuse for many years — for ten years — to give' the transfers over their connecting lines required by statute is a condition of things “in the modern life of great cities.” which public policy requires should be visited with all the prescribed penalties, instead of being shielded from them by the courts against the expressed" will of the legislature. A right of action for a penalty having accrued, and the action having been begun, the beginning of a subsequent action for a subsequent penalty cannot be a waiver of the prior penalty and action, and be pleaded in bar of such action, as is the case before us. To so hold is to give the offender practical immunity; for the bringing of a new action for each successive offence would only condone all of the former offences, and furnish a plea in bar to- all' prior actions therefor, and no judgment would ever be reached for a penalty; and by successive new.actions being thus made worse than useless, farcical, in fact, the offender may go on offending with impunity until some action — the last one brought— reaches judgment; and when such judgment is reached, only one penalty out of the many incurred meanwhile may then be sued for, and all the others being “ previous ” to the bringing of this new action, are condoned. I cannot believe that our highest court meant to decide such a thing, and we should all wait until it shall “ state its intention in so many words ”, as it says of the legislature in the Griffin case. The legislature followed a line of decisions of the Court of Appeals, cited in the Griffin case, in using the phrase “ every refusal ” in the Railroad Law. It is now told that its language is not plain enough. I hope I may say with .the highest respect for all concerned that I do not see how .the legislature can make its meaning plainer without passing a bill of remonstrance that it means just what it says.

Judgment of the Municipal Court affirmed, With costs. 
      
       See Laws of 1890, chap. 565, ,§ 105, as renumbered and amd. by Laws of 1892, chap. 676.—[Rep.
     
      
       See Laws of 1903, chap. 580.— [Rep.
     