
    Coleman D. Mendoza, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      •Tranfer from, one railroad to another—■words “embraced in such contract” ' construed.
    
    The term, “embraced in-such contract,” as used in section 104 of the Railroad-Law '.(Laws of 189.0, chap. 565), relating to contracts between street railroad corporations for the use of their respective roads, and providing for a continuous trip for a single fare between any two points on railroads “embraced in such contract,”'includes only .those roads operated, by, the- contracting com- • panies at the time the contract was made. " , ..
    y Reargument of an appeal by the; defendant, the Metropolitan-Street Railway Company, from an interlocutory -judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of .New York on the 18th day of November, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling, its demurrer to the complaint.
    This case is reported in 48 Appellate Division, 62.
    
      Charles F. Brown, for the appellant.
    
      H. Huffman Browne, for the respondent,
   Rumsey, J.:

The plaintiff alleges that at the times mentioned in the complaint the defendant was a domestic corporation owning, leasing and operating various lines of street surface railroads in the borough of Manhattan and the city, county and State of New York; that on the 19th of March, 1898, the defendant leased a portion of the Second Avenue railroad from a point below Eighty-third street to and beyond One Hundred and Sixteenth street and operated a street surface railroad over that route ; that later, to wit, the 27th of September, 1898, the defendant owned or leased and operated a street surface railroad known as the Manhattan branch from One Hundred and Sixteenth street and Manhattan avenue to One Hundred and Ninth street and Columbus avenue in the city of New York and borough of Manhattan, and that that branch crossed the line of the Second Avenue railroad at One Hundred and Sixteenth street. It alleges that on the latter day the defendant also owned or leased and operated as a surface railroad' one known as the Columbus Avenue branch from the corner of Fiftieth street and Seventh avenue" to the intersection- of One Hundred and Tenth street and Columbus-avenue, connecting with and intersecting the route of the Manhattan branch at One Hundred and Ninth street and Columbus avenue. The complaint then contains an allegation that the defendant was subject to and bound by the provision of section 104 of the Railroad Law. It then states that on the 27th of September, 1898, the plaintiff became a passenger on the defendant’s car on the Second Avenue line and paid five cents fare; that he rode on that car to One Hundred and Sixteenth street and Second avenue, where he was transferred to a car on the Manhattan Avenue branch, on which he rode to Columbus avenue and One Hundred and Ninth street;that at that point- he desired to be transferred to-the Columbus Avenue line, but that the defendant refused to give him a transfer dr to permit him to ride without the payment of an additional fare. The defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled at the Special Term and an interlocutory judgment entered for the plaintiff.

At the February term, 1900, the case was upon the calendar and- the judgment was reversed, but afterwards, upon the respondent’s motion, a reargument was ordered. The respondent claims that he is entitled to maintain this action under section 101 of the Railroad Law (Laws of 1890, chap. 565), but that section applies only to a corporation constructing or operating a . railroad under the provisions of the Railroad Law, or under chapter 252 of the Laws of 1881,, and there is no allegation in the complaint -that, this defendant has constructed or is operating a road' under either- of these statutes. It is well known that several of the railroad companies in the city of New York have built and- are operating their roads under special charters, and we have no' means of knowing that this defendant is not one of them. Therefore the complaint cannot be sustained under that section.

The serious question, however, and the only one presented by the allegations of the complaint, is,- whether the plaintiff set out a cause of action under section 101 of the Railroad Law (Laws of 1890, chap. 565 ; 2 R. S. [Banks’ 9th ed.] 1311). If we read that, section in connection with the neighboring sections of the Railroad Law, it is-quite difficult to say to just what contract the section itself applies. More than one contract is spoken, of in the section immediately preceding, but none of them seem to apply to the contract spoken of in this, section, but when we recollect that section 101 was adopted into the Railroad Law from chapter 305 of the Laws of 1885, and that the Railroad Law was a compilation of the other existing laws of the State, it is not difficult to ascertain that the section refers to-the contract mentioned in section 78 of the Railroad. Law,, although-that is in another title and under another heading. Section 78 authorizes any railroad corporation, or any corporation owning or operating a railroad in the State,, to contract with any other corporation for the usé of their respective roads, or any part thereof. In that respect it is •a re-enactment of chapter 305, which by its terms was limited to ■street surface railroads. Section 104 of the Railroad Law, which evidently refers to section 78 and is a re-enactment of section 4 of the same chapter of the Laws of 1885, provides that every such corporation entering into such contract shall carry between any two points on the railroads, or the portions thereof embraced in such contract, any person desiring to make one continuous trip between such points for one single fare, and shall upon demand and without extra charge give to such. passenger a transfer, etc. It is stated in the section that its object is, “that the public convenience may be promoted by the operation of the railroads embraced in such, contract substantially as a single railroad with a single rate of fare.”

So it will be seen that the question presented in this case is, what railroads are embraced within the contract ? Strictly speaking, when one railroad leases the road of another, the only road embraced in the contract is the one leased, but as the power to lease is derived from the authority given to one railroad corporation operating or owning a railroad to contract with another such corporation for the use of their respective roads, it is necessarily to be inferred that the roads embraced within that contract are the roads operated or leased by the two roads between whom the contract is made. But the roads embraced within the contract can only be those operated by the contracting companies at the time the contract is made. While the statute is to be liberally construed, ás has been held in the case of Jenkins v. Brooklyn Heights R. R. Co. (29 App. Div. 10), yet it puts upon the railroad companies no duty except with respect to the roads which are embraced within the contract. Clearly, if either of the companies afterwards secures from another company the use of its road, that road cannot be said to be embraced within a contract theretofore made by the leasing company with another company which is not a- party .to 'the second contract, and, therefore, when it appears, as it does here, that the defendant at the time it acquired the Second Avenue road did not operate the Manhattan branch, it cannot be said that that branch to which the plaintiff asked to be transferred was one which was embraced in the contract which had been made by the defendant with the Second Avenue Railroad Company several months before it came to operate the Manhattan branch. We think, therefore, that the conclusion of the court, which was reported in the 48th volume of the Appellate Division reports, at page 62, was correct, and the judgment of- the court below should be reversed and the demurrer sustained, with costs, with leave to the plaintiff to amend his complaint upon payment of the costs in this court and in the court below.

Man Brunt, P. J., and Ingraham, J., concurred; McLaughlin,. J., concurred in result.

Judgment reversed and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court, below.  