
    PETZE v. CONEY ISLAND & B. R. CO.
    (Supreme Court, Appellate Division, Second Department.
    June 29, 1908.)
    1. Carriers—Regulation—Carriage of Passengers—Excessive Fares—Penalty.
    A corporation, organized as a steam railroad under the general steam railroad act, operating as an electric street railway a road five or six miles long, and continuing to claim its right under the steam railroad act, instead of conforming to the law of street surface railroads, must conform to that act; and charging fares in excess of rates fixed by Railroad Law, Laws 1890, p. 1096, c. 565, § 37, renders it liable to the penalty imposed by section 39, provided the overcharge is not made through inadvertence or mistake.
    2. Same.
    A railroad company, charging excessive fares pursuant to plan and intention, under legal advice, is subject to the penalty imposed by Railroad Law, Laws 1890, p. 1096, c. 565, § 39, for charging excessive fares, unless the overcharge was made through inadvertence or mistake.
    "Appeal from Municipal Court of New York.
    Action by William R. Petze against the Coney Island & Brooklyn Railroad Company. Prom a judgment of the Municipal Court for plaintiff, defendant appeals.
    Affirmed.
    Argued before WOODWARD, HOOKER, RICH, MIDLER, and GAYNOR, JJ.
    John J. Kuhn (Owen N. Brown, on .the brief), for appellant.
    Pullerton Wells, for respondent.
   GAYNOR, J.

The defendant was organized as a steam railroad under the general steam railroad act, but is now run after the manner of an electric street railway. In place of charging a uniform fare of 5 cents, however, it charges 10 cents to go over its line, which can be justified only under its right to charge 3 cents a mile as not being a street surface railroad, as allowed by Railroad Law, Laws 1890, p. 1096, c. 565, § 37, subd. 5. In that way it charged and collected of-the plaintiff 10 cents for riding less than three miles on its road, which is five or six miles long; and the plaintiff has recovered judgment against it for $50.01, i. e., for the overcharge of 1 cent and a penalty of $50, as allowed by section 39 of the railroad law in the case of a railroad asking or receiving more than the lawful rate of fare, “unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence.” The court below correctly found that there was no inadvertence or mistake. The evidence shows plan and intention, rather, under legal advice. If the defendant continues to claim its rights under the steam railroad law, rather than conform to the law of street surface railroads, it must conform to the former.

The judgment should be affirmed.

Judgment of Municipal Court affirmed, with costs. All concur.  