Snee v. Brooklyn Heights Railroad

Full title: JOHN SNEE, Appellant, v . THE BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 7, 1907

120 App. Div. 570 (N.Y. App. Div. 1907)

104 N.Y.S. 907

Opinion

June 7, 1907.

Alfred J. Gilchrist [ Jacob Neu with him on the brief], for the appellant.

I.R. Oeland and George D. Yeomans, for the respondent.

GAYNOR, J.:

This action was brought to recover the penalty of $50 prescribed by section 104 of the Railroad Law for a refusal by a street surface railroad company to deliver to a passenger a transfer for a continuous trip over its line and any connecting branch operated or controlled by it. The plaintiff testified that at the time of paying his fare and afterwards he asked the conductor to give him the transfer, and that the conductor refused, giving no explanation or reason. The complaint was dismissed on the ground that the defendant having provided for transfers, and given its conductors transfer tickets to give to passengers, it was not liable to the penalty for the refusal of the conductor to give the plaintiff a transfer ticket. This was error. The refusal of the conductor was that of the defendant. Section 39 of the Railroad Law, which provides that any railroad corporation which shall ask or receive more than the lawful rate of fare, unless "through inadvertence or mistake, not amounting to gross negligence", shall incur a penalty of $50, does not apply to the case. It is not to be construed with section 104. Its genesis and context are different (Laws of 1857, ch. 185; Laws of 1886, ch. 415), and the reservation in it has reference to mistakes of fact, such as of the distance between stations, or the like. The present case is for the refusal of a transfer ticket, not for asking or receiving an unlawful rate of fare.

The judgment should be reversed.

HIRSCHBERG, P.J., JENKS and HOOKER, JJ., concurred; WOODWARD, J., voted for affirmance on the opinion of CRANE, County Judge.

Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.

GAYNOR, J.:

The following is the opinion of CRANE, J.:

CRANE, J.:

I have decided a case similar to this ( Schwartzman v. Brooklyn Heights R.R. Co., 50 Misc. Rep. 116). The opinion in that case I make the opinion in this, and give the reasons therein stated for granting the motion made herein to direct a verdict for the defendant.