
    Frank S. Scudder, Respondent, v. Interurban Street Railway Company, Appellant. (Action No. 1.)
    
      Transfers on street surface railways— what leased roads are embraced within section, 104 of the Railroad Law.
    
    The Ninth Avenue Railroad Company owned and operated a railroad on Amsterdam avenue in the city of New York. In 1899 it leased this line, to the Houston, West Street and Pavonia Ferry Railroad Company. On December 13, 1893, the Houston, West Street and Pavonia Ferry Railroad Company consolidated with several other railroad companies and became the Metropolitan Street Railway Company.
    The Third Avenue Railroad Company owned and operated a railroad on One Hundred and Twenty-fifth street in the city of New York. On April 13, 1900, the Third Avenue Railroad Company leased the One Hundred and Twenty-fifth Street line to the Metropolitan Street Railway Company. This lease did not mention the lines theretofore leased to or operated by the Metropolitan Street Railway Company.
    In April, 1903, the Metropolitan Street Railway Company leased all of its lines to the Interurban Street Railway Company, a corporation organized to operate a railroad in Westchester county.
    
      Held, that the Interurban Street Railway Company was bound under section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as amd. by Laws of 1893, chap. 676) to issue transfers from the Amsterdam Avenue line to the One Hundred and Twenty-fifth Street line and from thé One Hundred and Twenty-fifth Street line to the Amsterdam Avenue line.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the defendant, the Interurban Street 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 8th day of February, 1904, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered on the 28th day of November, 1903.
    The Ninth Avenue Railroad Company owned and operated a railroad on Amsterdam avenue in the city of New York. In 1892 it leased this line to the Houston, West Street and Pavonia Ferry Railroad Company. On December 13, 1893, the Houston, West Street and Pavonia Ferry Railroad Company consolidated with several other railroad companies and became the Metropolitan Street Railway Company.
    The Third Avenue Railroad Company owned and operated a railroad on One Hundred and Twenty-fifth street in the city of New York. On April 13, 1900, the Third Avenue Railroad Company leased the One Hundred and Twenty-fifth Street line to the Metropolitan Street Railway Company. This lease did not mention the lines theretofore leased to or operated by the Metropolitan Street Railway Company.
    In April, 1902, the Metropolitan Street Railway Company leased all of its lines to the Interurban Street Railway Company, a corporation organized to operate a railroad in Westchester county.
    
      The action is- brought to recover penalties under section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered .§ 104 and amd. by Laws of 1892, chap. 676) from the Interurban Street Railway Company because of its refusal to issue transfers from the One Hundred and Twenty-fifth Street line to the Amsterdam Avenue.line and from the Amsterdam Avenue line to the One Hundred and Twenty-fifth Street line.
    
      Paul D. Cravath, for the appellant.
    
      Harcourt Bull, for the respondent.
   Hatch, J.:

The question which I regarded as controlling the decision in . Topham v. Interurbam, St. R. Co. (96 App. Div. 323) is not presented by the present record. The lease made in this case shows it to have been subsequent to May 1, 1891, and it is not claimed that there were any other leases made of the Third Avenue railroad or the Metropolitan Street railway prior thereto ; consequently such question is not involved. Heither does the pleading nor the proof in this case raise the question of compliance with section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap. 676) by showing that suitable regulations were made for the issuance of transfers in the promotion of the public convenience, as is expressed in the Topham case.

It follows, therefore, that the determination of the Appellate Term should be affirmed, with costs.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.

Ingraham, J. (dissenting):

•My views of the construction to be given to section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap. 676) are indicated in the case of Topham v. Interurban St. R. Co., (96 App. Div. 323); and if I am correct, this judgment must be reversed. The complaint alleges that the Metropolitan Street Railway Company had, for upwards of one year prior to April 8,1902, controlled and operated several lines of street surface railroads in the city of Hew York; that one of the said lines had been, on the 8th day of April, 1900, leased to the said Metropolitan Street, Railway Company by the Third Avenue Railroad Company; that at the time of such lease the other lines of railway, which included the Amsterdam Avenue line, were controlled and operated .by the Metropolitan Street Railway Company; that on the 29th day of June, 1903, the plaintiff boarded a car running north on Amsterdam avenue, paid his fare and asked for a transfer to enable him to ride to a point on the One Hundred and Twenty-fifth Street railroad, which had been leased to the Metropolitan Street Railway Company by the Third Avenue Railroad Company, both of these lines being operated by the defendant, which request was refused. And plaintiff asked to recover the penalty provided for a violation of section 104 of the Railroad Law.

The lease of the Third Avenue Railroad Company to the Metropolitan Street Railway Company was introduced in evidence. It recites that the parties are street surface railroad companies organized and existing under the laws of the State of New York, and that the lessor, the Third Avenue Railroad Company, owns and operates certain street surface railroads and railroad routes in the city of New York, which include the road on One Hundred and Twenty-fifth street, and owns certain parcels of land in the city and stock in certain other street surface railroad companies, and leases to the Metropolitan Street Railway Company “all.the railroads of the party of the first part ” thereinbefore mentioned for nine hundred and ninety-nine years, the lessee paying certain specified rent therefor, “to be used, maintained and operated by the party of the second part in accordance with the requirements of the charter and subject to the conditions of the grants to the party of the first part.”

This lease only affects the railroads owned and operated by the Third Avenue Railroad Company leased to the Metropolitan Street Railway Company. The lines before leased to or operated by the Metropolitan Street Railway Company were not referred to or in any way affected by this lease, and neither the lease nor the obligations assumed by either of the parties thereto was at all affected by the ownership or interest of the Metropolitan Street Railway Company in any other street railroad. The only “ railroads or portions thereof embraced in such contract ” were the lines of the Third Avenue Railroad Company which were leased to the Metropolitan Street Railway Company; and as section 104 of the statute only requires the parties to the contract to.give, to a passenger a transfer “ entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract,” it had no application to a line of railroad, although operated by a party to the contract, which was not as a fact embraced in the contract. The words “railroads or portions thereof” cannot, in my opinion, apply to all lines of railroad operated by either party to the contract which are not embraced in such contract.”

It does not appear in the record when the Metropolitan Street Railway Company acquired the right to operate the Amsterdam Avenue line. It certainly cannot be presumed, so as to make .the defendant liable for a penalty, that the defendant is operating the Amsterdam Avenue line under a lease or contract made after May 1, 1891.

I think the determination should be reversed, with costs, and the complaint dismissed.

Determination affirmed, with costs.'  